Prevention of Corruption Act

(a) In Crl.A.No.1033 of 2002, A.1 and A.2 were convicted for the offence u/s 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and each sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1,000/- each, in default, each to undergo rigorous imprisonment for one year; A.1 and A.2 were also convicted for the offences u/s 167 IPC and u/s 167 r/w 109 IPC respectively and each sentenced to undergo rigorous imprisonment for two years; A.1 and A.2 were also convicted for the offence u/s 467 IPC and each sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for six months; A.1 and A.2 were also convicted for the offence u/s 420 IPC and each sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- each, in default, to undergo rigorous imprisonment for six months; A.1 and A.2 were also convicted for the offence u/s 471 r/w 467 IPC and each sentenced to undergo one year rigorous imprisonment; A.1 and A.2 were also convicted for the offence u/s 477-A IPC and each sentenced to undergo rigorous imprisonment for three years and A.1 and A.2 were also convicted for the offence u/s 409 IPC and no sentence was imposed. A.1 and A.2 were acquitted of the charge u/s 120-B IPC. A.3 died during the course of trial and hence, the charges against A.3, stood abated. (b) In Crl.A.Nos.1034, 1035 and 1036 of 2002, A.1 and A.3 were convicted for the offence u/s 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947, and each sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1,000/- each, in default, each to undergo rigorous imprisonment for one year; A.1 and A.3 were also convicted for the offences u/s 167 IPC and u/s 167 r/w 109 IPC respectively and each sentenced to undergo rigorous imprisonment for two years; A.1 and A.3 were also convicted for the offence u/s 467 IPC and each sentenced to undergo rigorous imprisonment for three years; A.1 and A.3 were also convicted for the offence u/s 420 IPC and each sentenced to undergo rigorous imprisonment for three years; A.1 and A.3 were also convicted for the offence u/s 471 r/w 467 IPC and each sentenced to undergo one year rigorous imprisonment; A.1 and A.3 were also convicted for the offence u/s 477-A IPC and each sentenced to undergo rigorous imprisonment for three years and A.1 and A.3 were also convicted for the offence u/s 409 IPC and no sentence was imposed. A.1 and A.3 were acquitted of the charge u/s 120-B IPC. During the course of trial, A.2 died and hence, the charges against him stood abated, in these cases. (c) In Crl.A.Nos.1037, 1038, 1039, 1040, 1041, 1042, 1043, 1044, 1045 and 1048 of 2002, A.1 and A.2 were convicted for the offence u/s 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, and each sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1,000/- each, in default, each to undergo rigorous imprisonment for one year; A.1 and A.2 were also convicted for the offences u/s 167 IPC and u/s 167 IPC r/w 109 IPC respectively and each sentenced to undergo rigorous imprisonment for two years; A.1 and A.2 were also convicted for the offence u/s 467 IPC and each sentenced to undergo rigorous imprisonment for three years; A.1 and A.2 were also convicted for the offences u/s 420 IPC and u/s 420 IPC r/w 109 IPC respectively and each sentenced to undergo rigorous imprisonment for three years; A.1 and A.2 were also convicted for the offence u/s 471 IPC r/w 467 IPC and each sentenced to undergo one year rigorous imprisonment; A.1 and A.2 were also convicted for the offence u/s 477-A IPC and each sentenced to undergo rigorous imprisonment for three years and A.1 and A.2 were also convicted for the offence u/s 409 IPC and no sentence was imposed. A.1 and A.2 were acquitted of the charge u/s 120-B IPC. (d) In Crl.A.Nos.1046 and 1047 of 2002, A.1 in each case were convicted for the offence u/s 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, and each sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1,000/- each, in default, each to undergo rigorous imprisonment for one year; they were also convicted for the offence u/s 167 IPC and sentenced to undergo rigorous imprisonment for two years; they were also convicted for the offence u/s 467 IPC and each sentenced to undergo rigorous imprisonment for three years; they were also convicted for the offence u/s 420 IPC and each sentenced to undergo rigorous imprisonment for three years; they were also convicted for the offence u/s 471 IPC r/w 467 IPC and each sentenced to undergo one year rigorous imprisonment; they were also convicted for the offence u/s 477-A IPC and each sentenced to undergo rigorous imprisonment for three years and they were also convicted for the offence u/s 409 IPC and no sentence was imposed. They were acquitted of the charge u/s 120-B IPC. A.2 in these cases died during the course of trial and hence, charges stood abated against them. The sentences imposed on the appellants/accused in all the cases, were directed to run concurrently.

2. The estimated amounts for the forest crash plantation in the respective places and the alleged amounts of misappropriation, are detailed below:

Crl.A.No.

Trial Court C.C.No.

Place of forest crash plantation work

Period of occurrence

Amount as per the sanction order (in Rs.)

Alleged misappropriated amount in Rs.

1033/02

3/96

Bommidi Forest Range Boothanatham Misc. Forest Crash Plantation

1988-89

42,600

16859

1034/02

11/96

Bommidi Forest Range Khadiripuram Forest Crash Plantation

1988-89

47,700

27,339

1035/02

12/96

Bommidi Forest Range Vasi Goundanaur Misc. Forest Crash Plantation

1988-89

42,300

5,023

1036/02

13/96

Bommidi Forest Range Vasi Goundanaur Misc. Forest Crash Plantation

1988-89

22,900

10,376

1037/02

14/96

Bommidi Forest Range Simpilthiradi Misc. Forest Crash Plantation

1989

35,400

3,000

1038/02

15/96

Bommidi Forest Range Kalingaavaran Misc. Forest Crash Plantation

1989

21,600

3,812

1039/02

16/96

Bommidi Forest Range Obilinaickanahalli Misc. Forest Crash Plantation

1989

38,275

1,800

1040/02

17/96

Bommidi Forest Range Kasiyampatti Misc. Forest Crash Plantation

1989

28,000

3,338

1041/02

18/96

Bommidi Forest Range Pudur Misc. Forest Crash Plantation

1989

35,200

5,200

1042/02

19/96

Bommidi Forest Range Mannar Krishna Koil Misc. Forest Crash Plantation

1989

43,500

4,020

1043/02

20/96

Bommidi Forest Range Pillparuthi Misc. Forest Crash Plantation

1989

36,600

4,110

1044/02

21/96

Bommidi Forest Range Vasi Goundanur Misc. Forest Crash Plantation

1989

38,500

4,500

1045/02

22/96

Bommidi Forest Range Bothakaadu Misc. Forest Crash Plantation

1989

38,900

3,988

1046/02

23/96

Bommidi Forest Range Menasi Misc. Forest Crash Plantation

1989

45,400

4,020

1047/02

24/96

Bommidi Forest Range Boothanatham Misc. Forest Crash Plantation

1989

44,500

6,000

1048/02

25/96

Bommidi Forest Range Khadirinayakanahalli Misc. Forest Crash Plantation

1989

31,500

6,025

 

3. The case of the prosecution in short, which is common in all the cases, is as follows:

A.1 is the Forest Ranger. A.2 and A.3 are Foresters. They have worked as Government servants from April 1988 to March 1989. All the accused have worked in the forest crash plantation process in the respective areas. During the process of execution of the work of forest crash plantation, it is alleged that A.1 to A.3 have falsified the records to show that they engaged the workers for executing the work as mentioned in the estimate submitted by A.1 Forest Ranger. In pursuance of the estimate, Mr.Srinivasan, Divisional Forest Officer, in turn has sanctioned the amount for execution of the work and due to escalation of the price, the accused gave revised estimate. That has also been considered by Mr.Srinivasan, Divisional Forest Officer and the amount was sanctioned after scrutinising the same. The list of expenditure was received then and there. The officers inspected the work executed by the accused and at that time, they came to know that some of the work has not been executed by the accused and they came to know that false records have been created with an intention to cheat and it is alleged that the accused misappropriated the amounts. The Assistant Conservator of Forests made inspection of the work done and submitted reports. The Village Administrative Officers gave certificates stating that the receipts given by A.1 to A.3 are pertaining to only fictitious persons and those persons were not residing at the respective places. The document examiner/handwriting expert received the disputed signatures and the admitted signatures of the witnesses and compared the same and gave reports. The other witnesses/workers who were the signatories to the receipts, stated that they have done the work, received the coolie and they have turned hostile. The Principal Chief Conservator of Forests accorded sanction for prosecuting the appellants-accused and in pursuance of the same, complaints were filed, the cases have been taken up and the investigation has been done by Mr.Krishnaswamy, Deputy Superintendent of Police of the Vigilance and Anti-Corruption Wing. After completion of the investigation, the charge sheets/final reports were filed.

4. The trial Court questioned the appellant-accused under Section 313 Cr.P.C. posing incriminating evidence against them, to which, they denied. On a consideration of the oral and documentary evidence/the evidence of the witnesses and exhibits/documents marked, the trial Court convicted and sentenced the appellants-accused as indicated above.

5. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellants/accused raised the following points for consideration:

(i) The sanction order for prosecuting A.1 (Forest Ranger), is not in accordance with law. The sanction order has been issued without jurisdiction and so, it is not valid.

(ii) The complainant himself is the investigating officer in this case, and so, the conviction is vitiated. (iii) Violation of the guidelines and instructions will not fasten criminal liability on the accused and, as the accused are government servants, disciplinary proceedings alone necessitated. (iv) The provisions of Rule 9 of the Forest (Conservation) Rules, 2003, have not been followed before preferring the complaint. The show cause notice has not been issued to the accused, before the complaint was preferred and hence, there is violation of principles of natural justice. (v) Since there is a delay in filing the final report and conducting the cases, it caused prejudice to the appellants/accused for cross-examining the investigating officer and further, during the pendency of investigation, the investigating officer Mr.Krishnaswamy, the Deputy Superintendent of Police, died on 13.12.2001 and one Mr.Sakthivelu, Deputy Superintendent of Police, of Vigilance and Anti-Corruption Wing, was examined and he was not in a position to give answers to each and every facts of the cases as he was not aware of the investigation made by the said Mr.Krishnaswamy. (vi) The second report submitted by Mr.Thangavelu, Assistant Conservator of Forests, is not a substantive piece of evidence and it is only a tainted report and the second report is not a completed one.

(vii) The amount for execution of the work for planting saplings, was issued stage by stage after inspection made by the superior officer and there was no chance for falsification of records, misappropriation of the amounts and cheating and hence, the ingredients of Sections 109, 167, 467, 471, 409, 420 and 477-A IPC are not made out against the accused. (viii) Even though prosecution has examined the witnesses, stating that false records have been created by A.2 and A.3 in connivance with A.1 and it is alleged that there was misappropriation of the amount, to prove the same, the signatories to the documents, were examined, and they turned hostile. (ix) The receipts submitted by A.1 to A.3, for the amounts, in respect of the work done by the workers, contained the names of fictitious persons and to prove the same, the Village Administrative Officers were examined, but they have not substantiated the case of the prosecution. Learned counsel for the appellants/accused relied on the judgments of the Apex Court and this Court, to substantiate the above points and prayed for acquittal of the accused.

6. Learned Government Advocate (Criminal Side) appearing for the respondent-Vigilance and Anti-Corruption Officer, would contend as follows:

(i) The sanction has been made in accordance with law, and there is no violation of any Rules.

(ii) The delay in filing the final reports and conducting the cases, does not vitiate the entire proceedings.

(iii) The fact that the complainant himself is the investigating officer, is not fatal to the case of the prosecution.

(iv) Non-filing of the annexure to the second report filed by Mr.Thangavelu, Assistant Conservator of Forests, is not fatal.

(v) Not following Rule 9 of the Forest (Conservation) Rules, 2003, does not affect the case of the prosecution.

Learned Govt. Advocate (Crl. Side) prayed for confirmation of the conviction and sentence passed by the trial Court on the appellants-accused and for dismissal of the Criminal Appeals.

I. Whether the sanction order is in accordance with law ?

7. Learned counsel for the appellants-accused would contend that the sanction accorded for prosecuting the appellants-accused, is not valid under law. He further contended that A.1 who is a Forest Ranger, has been appointed through the TNPSC and no permission has been accorded by the Chief Secretary/Secretary of the State Government for prosecuting him. As per Section 19 of the Prevention of Corruption Act, 1988 and Article 311 of the Constitution of India, the appointing authority or the authority higher than the appointing authority, is having right to accord sanction for prosecuting a Government servant. He further contended that the Principal Chief Conservator of Forests, has given sanction for initiating criminal action against A.1, but he is an inferior authority to the Chief Secretary/Secretary to Government and he is not a competent person to accord sanction. Learned counsel further submitted that the Principal Conservator of Forests has not applied his mind while according sanction for prosecuting A.1 to A.3 and the reasons are not reflected in the sanction order and it is only replica of the notes submitted by the investigating officer. The Principal Chief Conservator of Forests (P.W.1) himself admitted that only the draft sanction order has been circulated to him. Learned counsel further stated that during the cross-examination of P.W.1, he has not mentioned as to what are the materials perused before he accorded sanction. P.W.22 Deputy Superintendent of Police of the Vigilance and Anti-Corruption Wing, who is also an officer who sought for sanction, has not mentioned as to what are the materials placed before P.W.1 for obtaining sanction. Learned counsel further submitted that even if the Court comes to the conclusion that P.W.1 Principal Chief Conservator of Forests, is the competent person to accord sanction, he has not perused the materials and he has not mentioned as to what are the materials/documents placed before him before according sanction. The sanction order is not in accordance with law. Learned counsel for the appellants/accused relied upon the following decisions in support of the abovesaid contentions: (a) 2004 SCC (Cri) 1176 = 2003 (9) SCC 504:(P.A.Mohandas v. State of Kerala)

3. Under Section 19 of the Act, no court can take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove the person concerned. In the case in hand, the Secretary (Vigilance) appears to have accorded sanction to prosecute. The appellants case is that the Secretary (Vigilance) was authorised to grant sanction only on 23-4-1994 and there is no order of the State Government making the Secretary (Vigilance) competent to accord sanction prior to the said date. The learned counsel appearing for the State is not in a position to refute the aforesaid contention and, in fact, is not able to produce any document which confers power on the Secretary (Vigilance) to accord sanction prior to 23-4-1994. The sanction in the present case was given prior to the aforesaid date. The date on which the sanction appears to have been given, the authority concerned had no jurisdiction and, therefore, there is an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Act. We accordingly quash the proceeding."

(b) 2004 SCC (Cri) 1213 = 2002 (10) SCC 688: (Manoranjan Prasad Choudhary Vs. State of Bihar):

"2. The sole question that arises for consideration is whether sanction has been accorded by the competent authority under Section 19(1)(c) of the Prevention of Corruption Act, 1988. The authority competent to remove him from the office is the authority to accord sanction and admittedly, the said authority is the Managing Director of the Company, as contended by the counsel for the petitioner and conceded by Mr.B.B.Singh, learned counsel appearing for the State of Bihar. In that view of the matter, since there is no sanction of the competent authority, the proceeding is vitiated. We accordingly set aside the impugned order and quash the proceeding." (c)1994-1-LW(Crl.)11.S.N.(Madras High Court) (State by Public Prosecutor Vs. Vedalingam and 2 others):

"17. P.W.9 was examined and he deposed that it was the General Manager, Southern Railway, who was the competent Authority to remove A.2 from service. But, he issued the sanction order, Ex.P.54 ...

......

... Though it was contended on behalf of the accused before the trial court that it is the Controller of Stores as the Head of the Department, who alone would be competent to sanction the prosecution of A.2 and the trial court came to the conclusion that there is no support for the said argument. But, the trial court held relying on the various decisions of the Apex Court and other courts that the sanction order is not valid since P.W.9 has not applied his mind before ever the sanction was issued as required. What all the learned Government Advocate would submit is, that the order itself shows that the sanctioning authority viz., P.W.9 has applied his mind and in view of S.465 Cr.P.C., unless there was a prejudice, sanction should not be attacked at the later stage. Further, merely because P.W.9 is a witness, he cannot be said to be disqualified for issuing a sanction order. In support of his contention learned Government Advocate relied on only the decision reported in Jaswant Singh v. State of Punjab (AIR 1958 S.C. 124) wherein it is held as follows: "The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. AIR 1948 P.C. 82 Rel. on".

But, learned counsel appearing for A2, Mr.Karpagavinayagam, rebutted the said contention and submitted that in order to prove the validity of the sanction the prosecution has to prove that the sanctioning Authority should apply their mind before according sanction and the Authority giving sanction should be able to consider for itself the evidence before it comes to the conclusion as to whether the prosecution, in the circumstances, be sanctioned and the requirement of the previous sanction is not a formal or a technical one. Further, it should be brought out that the Authority giving the sanction had all the materials of the evidence and the result of the investigation for it before it applies its mind for sanctioning the prosecution. ....

... Before ever, we go to the decisions we consider the other reason for invalidating the sanction order viz., the non-application of mind on the part of the sanctioning authority before according sanction. We now deal with the decisions relied on learned counsel one by one. (1) Mohd. Fasal Ahmed v. State of A.P. (AIR 1979 SC 677), wherein the Apex Court has held as follows:

"It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings, are rendered void, ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an ideal formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned." (2) Periasamy v. Inspector Vigilance & Anti-Corruption, Tiruchirapalli (1992-L.W(Crl.) 582), wherein it is held:

"The sanction order given by authority to prosecute an accused under the Prevention of Corruption Act is not an empty formality but it should be after full satisfaction on the basis of the materials and evidence made available with regard to the allegations made against the particular accused and that the non-giving of any reasons pertaining to the grounds of satisfaction amounts to invalidate the sanction order itself and not in accordance with law."

The decision in Har Bharoley Lal v. State of U.P. (1988 Crl.L.J. 1122), has followed the earlier decision in Mohd. Iqbal Ahmed v. State of A.P. (AIR 1979 SC 677), wherein it is stated:

"Courts cannot act on surmises and conjectures, nor will they be guided by extraneous considerations or matters which are not on record. The grant of sanction is not an idle formality but a solemn and sacrosanct act which provides protection to public servants against frivolous prosecutions."

(3) Parmanand Dass v. State of A.P. (1978 Cr.L.J. 1802), wherein it is held as follows:

Where the special officer appointed under S.2 of the Hyderabad Municipal Corporation (Amendment) Act 11 of 1970 was empowered to exercise the powers and perform the duties and discharge the functions of the Standing Committee of the Municipality but by a resolution the standing committee accorded sanction under S.6(1)(c) of the Prevention of Corruption Act and authorised the Special Officer to sign the order according sanction and accordingly the Special Officer issued the sanction order:- Held that the sanction order was not valid as the Special Officer who was entitled under the Act has not given the sanction as a Special Officer or by himself exercising the powers of the Standing Committee but issued the sanction order in pursuance of the sanction given by the Standing Committee. The plea that the Standing Committee and the Special Officer are one and the same cannot be accepted in the circumstances."

(4) M.Gopala Krishnaiah v. State (1998 Crl.L.J. 651 at 655), wherein it is observed thus:

"It is pertinent to note here that the person who wrote the letter dated 9.10.1986 is the person that participated in the Board's meeting. In one capacity he is asking the Board to consider to take action and in another capacity, he was participating in the Board meeting, and approved the action for sanction on the basis of the report sent by the police. In Jaswant Singh v. State of Punjab (1958 Crl.L.J. 265), it was held as follows:

The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; (Basedo Agarwala v. Emperor, 1945 FCR 93, at p.98; (AIR 1945 FCR 16 at p.18 : 1945 (46) Crl.L.J. 510, at p.512). The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkdas Morarka v. The King, 75 In.App.30 at p.37 : AIR 1948 P.C. 82, p.84 (1918 (49) Crl.L.J. 261 at p.263), the Judicial Committee of the Privy Council also took a similar view when it observed: "In their Lordships" view, to comply with the provisions of Cl.23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the facts of the sanction, but this is not essential, since Cl.23 does not require, the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constituted a condition precedent to the institution of the prosecution and the government have an absolute discretion to grant or withhold their sanction." It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case, sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusefali Mulla v. The King, 76 Ind.App. 158 : AIR 1949 P.C. 264; 1949 (250) Crl.L.J. 889, it was held that a valid sanction on separate charges on hearing and profiteering was essential to give the Court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction.

(5) M.S.Kuppusami v. State (1992 Crl.L.J. 56), wherein it is observed thus:

"The purpose of sanction being vested in a departmental authority is to provide an opportunity for assessment and weighing of the accusation in a dispassionate and responsible manner. Such an approach in the matter of according sanction must be apparent on the face of the record. It will be appropriate, that the order of sanction reflects the understanding of the facts by the sanctioning authority in his own way, not being put into a strait-jacket of repeating the facts put forth by the investigating agency. Sanction to prosecute must have sanctity attached to it for the liberty of the person prosecuted is involved."

(6) "Union of India v. D.Bali (1978 Crl.L.J. NOC 14) Himachal Pradesh, wherein it is held as under:-

"It is settled rule of law that sanction accorded by an authority not competent to do is no sanction in the eye of law and such a defect is not a mere technical defect but goes to the very root of the matter vitiating the entire proceedings."

(7) Sailendranath v. State of Bihar (1968 Crl.L.J. 1484), wherein it is observed:

"From that schedule it is seen that though a head of the Department can impose on Class III Officers censure as well as some other punishments detailed therein, he is not competent to impose on them the punishment of removal from service, compulsory retirement or dismissal from service. These punishments, as seen from the Schedule, can be imposed on them only by the appointing authority or any other higher authority. P.W.1 is not shown to be the appointing authority. On the materials before us it is not possible to come to the conclusion that P.W.1 was competent to grant sanction under S.6(1) of the Prevention of Corruption Act." In In re Devanugraham (AIR (38) 1951 Madras 255), it was observed by this Court that before the sanction order, there should be evidence available, before the sanctioning authority and where there was nothing to indicate that all the facts were placed before the sanctioning authority, the sanction could not be said to be a valid one.

18. Mr.Karpaga Vinayagam, learned counsel for the second accused relied on an unreported judgment, in support of his contention, in C.A.No.233 of 1990, by judgment dated 14.6.1993, (Charles Waker Devadas v. State), wherein Arumugham,J., after referring to the case law on this question relied on by learned counsel on both sides, has observed thus:- "On this ground, for the opinion of my reasonings given above, I am of the view in observing that Ex.P.29, is not a valid sanction order as contemplated by S.6 of the Prevention of Corruption Act itself and that the sanctioning authority has given Ex.P.29 without applying his mind with reference to any grounds of satisfaction or evidence aliunde constituting the offence against the appellant herein and accordingly, the entire proceedings is void ab initio as it is without a valid and proper sanction."

(d) 1979 (4) SCC 172 (Mohd. Ahmed Vs. State of A.P.):

"3. A perusal of the resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on March 31, 1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses PWs 2 and 7. PW 2 has produced the order implementing the Resolution of the Sanctioning Authority which is Ex. P10 and is dated April 21, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Ex.P16 which was placed before the Sanctioning Authority. The evidence of PW 2 or PW 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr.Rao vehemently argued that although the resolution, Ex. P.16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by PW 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."

(e)1988 Cri.L.J. 651 (Andhra Pradesh High Court)

(M.Gopala Krishnaiah and etc., Vs. The State):

"Board of Directors acting on the contents of letter from Addl. Secretary to the Ministry of Finance who himself was also a member of the Board and sanctioning prosecution--Board not applying its mind and looking into transactions wherein the Board itself had ratified the acts of officials in sanctioning loans--Held, sanction was invalid and liable to be quashed."

(f) 2007 (11) SCC 273 (State of Karnataka Vs. Ameerjan):

"It is true that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the PC Act by refusing to accord sanction for his prosecution or not. For the aforementioned purpose, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. In the instant case, the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by IG Police. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. The High Court called for the original records. It had gone thereinto. It was found that except the said report, no other record was made available before the sanctioning authority. The order of sanction also stated so. The sanctioning authority did not have the occasion to consider the records except the purported report. Therefore, the impugned judgment of the High Court does not suffer from any legal infirmity although some observations made by the High Court do not lay down the correct legal position."

8. Learned Government Advocate (Criminal Side) would submit that the Principal Chief Conservator of Forests is the competent person to accord sanction and he applied his mind and accorded sanction and the sanction is only in accordance with law. In support of his contention, he relied upon the decision reported in 2004 SCC (Cri) 2140 = 2004 (7) SCC 763 (State Vs. T.Venkatesh Murth), in which it was held as follows: "6. Section 19 is a part of Chapter 5 of the Act which deals with "Sanction for Prosecution and Other Miscellaneous Provisions". This section has four sub-sections which read as follows:

"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

4. In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.--For the purposes of this section,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

7. A combined reading of sub-sections (3) and (4) makes the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court a failure of justice has in fact been occasioned thereby.

8. Clause (b) of sub-section (3) is also relevant. It shows that no court shall stay the proceedings under the Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice.

9. Sub-section (4) postulates that in determining under sub-section (3) whether the absence of, or any error, omission or irregularity in the sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

10. Explanation appended to the section is also of significance. It provides, that for the purpose of Section 19, error includes competency of the authority to grant sanction.

11. The expression "failure of justice" is too pliable or facile an expression, which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment [(1977 (1) All.E.R. 813 : 1978 AC 359 : 1977 (2) WLR 450 (HL)]. The criminal court, particularly the superior court, should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. (See Shamnsaheb M.Multtani v. State of Karnataka [ 2001 (2) SCC 577 : 2001 SCC (Cri) 358 ]. ..... ....

14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. The requirement of sub-section (4) about raising the issue at the earliest stage has not been also considered. Unfortunately, the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial Judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial court to record findings in terms of clause (b) of sub-section (3) and sub-section (4) of Section 19.

15. The appeal is allowed to the aforesaid extent."

9. The only dispute in these cases is that A.1 is the Forest Ranger, and so, the appointing authority is the State Government and the Principal Chief Conservator of Forests, is not the competent person to prosecute the accused. But, there is no quarrel over the competency of P.W.1 Principal Chief Conservator of Forests, for according sanction to prosecute A.2 and A.3 Foresters.

10. As per the dictum laid down by the Apex Court, the order granting sanction must be demonstrative of the facts and there should have been proper application of mind on the part of the sanctioning authority. In these cases, on the basis of the report submitted by the investigating officer, P.W.1 Principal Chief Conservator of Forests, accorded sanction. While perusing the sanction order, it is seen that it contains the reasons and P.W.1 Principal Chief Conservator of Forests, has mentioned as to what are the materials he perused while according sanction and the sanction accorded by him is in accordance with law. Further, the sanction order is a speaking order and the authority has issued the sanction order after applying mind. P.W.1 Principal Chief Conservator of Forests, even though was appointed by the TNPSC, as per the Forest (Conservation) Rules, he is the competent person to accord sanction for prosecuting the accused, including A.1, who is a Forest Ranger.

11. In this context, learned counsel for the appellants-accused relied on Article 311 of the Constitution of India, which reads as follows:

"Article 311: Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply--

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

12. Even though learned counsel for the appellants-accused relied on Article 311 of the Constitution of India, which only deals with "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State", but the present cases relate to accord of sanction for prosecuting the accused in respect of the criminal liability. Furthermore, as per the decision of the Supreme Court reported in 2004 SCC (Cri) 1213 = 2002 (10) SCC 688 (cited supra), the appointing authority alone is the competent authority to accord sanction to prosecute in respect of the criminal liability.

13. Further, as per Clause 3 of the Tamil Nadu Forest Subordinate Service, the appointing authority for Ranger is the Principal Chief Conservator of Forests, and so, in the present cases, the Principal Chief Conservator of Forests, is the competent person to accord sanction for prosecuting the Ranger. Hence, as discussed above, P.W.1 Principal Chief Conservator of Forests, is the competent person to accord sanction for prosecuting the accused.

II. Whether the complainant is the investigating officer, vitiates the conviction:

14. Next, learned counsel for the appellants/accused would contend that the complainant himself is the investigating officer and so, it will vitiate the prosecution case. Learned Government Advocate would submit that the fact that the complainant is the investigating officer, is not fatal to the case of the prosecution and relied upon the decision of the Supreme Court reported in 2009 (11) SCC 690 (Bhaskar Ramappa Madar Vs. State of Karnataka), in which, the Supreme Court held as follows: "8. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh v. State of Rajasthan (1976 (1) SCC 15 : 1976 SCC (Cri) 737) (SCC at para 18) and Megha Singh v. State of Haryana (1996 (11) SCC 709 : 1997 SCC (Cri) 267) (SCC at para 4) have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on a case-to-case basis without any universal generalisation."

15. In view of the said decision of the Supreme Court, I am of the view that merely because the complainant himself is the investigating officer, it will not vitiate the entire case of the prosecution, since the cases are based on documentary evidence. Further, the final reports are also not vitiated. III. Whether non-compliance of Rule 9 of the Forest (Conservation) Rules, 2003, will vitiate the conviction and whether flouting of guidelines/instructions given by the superior officers, will fasten criminality liability ?

16. Next, learned counsel for the appellants-accused would contend that as per the facts of the case, the Principal Chief Conservator of Forests, identified the respective places and ordered for forest crash plantation. While executing the work of raising the plantation in the various blocks, A.1 connived with A.2 and A.3 and when inspection has been made, there was defect pointed out by Mr.Thangavelu, Assistant Conservator of Forests and in pursuance of the same, the complaints have been filed, investigation had been made and final reports were filed, after obtaining sanction from P.W.1 Principal Chief Conservator of Forests. At this juncture, learned counsel for the appellants-accused would contend that the prosecution has filed final reports stating that while executing the work, the funds have been misappropriated, by way of falsification of records and creating documents/receipts and they flouted the guidelines and instructions given by the superior officers and it will not fasten criminal liability and only disciplinary proceedings necessitated. Learned counsel relied upon Rule 9 of the Forest (Conservation) Rules, 2003 and submitted that before proceeding against the persons guilty of offence, a show cause notice has to be given, explanation has to be called for and only after obtaining explanation, the proceedings have to be initiated for the offence. Hence, learned counsel submitted that principles of natural justice, have not been followed. But in the present case, learned counsel for the appellants-accused contended that no such procedure has been followed and hence, the entire investigation is vitiated for non-compliance of Rule 9 of the Forest (Conservation) Rules. In support of his contention, learned counsel relied upon the following decisions: (a) 1991 SCC (Cri) 482 = 1991 (2) SCC 623 (Narendra P.N.Singh Vs. State of U.P.)

"23. In the present case, the entrustment or dominion over the property of the seed stores was not in dispute indeed there could be none. The essential questions that follow are: first, whether the first appellant had dishonestly misappropriated or converted the property entrusted to him to his own use or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged; secondly whether the second appellant was also a privy to the alleged misappropriation; thirdly whether both the appellants forged false bills and cash receipts and then fraudulently or dishonestly used such documents as genuine; and fourthly whether the appellants in their capacity of public servants dishonestly misappropriated or converted that property to their own use or wilfully suffered the department by doing any act in violation of the directions, thereby making themselves liable to be punished for the aggravated form of criminal breach of trust under Section 409 IPC. The expression 'dishonestly' is defined under Section 24 of the Indian Penal Code. It is true that the series of circulars issued by the Directorate of Agriculture have laid down certain directions prescribing the mode in which such trust was to be discharged.

24. Notwithstanding such circulars, it appears that the long established practice of credit sale of seeds, fertilisers, pesticides etc. from the Government Agriculture Seed Stores continued for some time, at least till the last circular issued on July 26, 1968. The repeated issuance of the circulars indicate that in spite of these circulars, the practice of credit sale was in vogue. A close scrutiny of the evidence and records show that the superior officers in spite of the circulars did not take a very serious view of the credit sale to the cultivators. In fact, by circular dated August 2, 1967, the Director of Agriculture, U.P. while impressing the prohibition of credit sale, gave only a warning that the erring officials would be held 'personally responsible to pay the outstanding amount'. We, in the above circumstances, feel that the appellants could not be mulcted with the criminality of breach of trust for following the established practice of credit sale through VLWs. Since the High Court has set aside the conviction of the appellants under Sections 467 and 471 IPC, holding "There is nothing on record to show that any such document was forged by the appellants .... No such using of any forged documents was done by the appellants ... their conviction under Sections 467 and 471 IPC is not justified", the prosecution case of forging the bills and receipts and using them as genuine, is to be held to have been found to be 'not true'. As stated supra, the State has also not filed any appeal against the order of acquittal for charges under Sections 467 and 471 IPC. It necessarily follows that the explanation given in defence of the appellants that the six bills in question and cash receipts were not bogus but genuine has been accepted by the High Court. Under these circumstances, the prosecution cannot be said to have satisfactorily proved even the temporary misappropriation of the amount in dispute. In fact, before the trial court, it was contended that there has not been any dishonest misappropriation of the property entrusted to the appellant, but that contention was repelled by the trial court for the reasons shown in its judgment which reasons, in our considered opinion, are not convincing in view of the peculiar facts and circumstances of this case. The High Court has not at all discussed the legal question of dishonest misappropriation as contemplated under Section 405 IPC but has summarily disposed of the case without deeply going into the question of facts or law. ....

27. In Criminal Appeal No.665 of 1979 arising out of Sessions Trial No. A-228 of 1974, the first charge reads that both the appellants on July 4, 1964 in their capacity as public servants and being in charge of the seed store, Semrauna committed breach of trust of the goods shown in Bill Nos.11, 17 and 18 of Book No.7767 to the value of Rs.450.26. In that case also, there were charges under Section 467 IPC (three counts). We are not concerned with the offence under Section 467 as the appellants now stand acquitted in this appeal also under those charges. The evidence now adduced by the prosecution discloses that the first appellant prepared the fictitious and bogus Bill Nos.11, 17 and 18 dated July 4, 1964 for Rs.186.71, Rs.132.45 and Rs.155.46 respectively--all totalling to Rs.480.26--which are the subject matter of the case under Section 409 IPC, and that the said amount of Rs.480.26 was misappropriated by the first appellant and that when the matter came up to light, he started making payments by paying Rs.76 on April 14, 1966 and Rs.27.60 on August 7, 1966 towards Bill No.11, and left an outstanding amount of Rs.376.66 and that thereafter no payment was made and the recoveries were made later on on December 2, 1969. It is further stated that the second appellant after taking charge from the first appellant on September 2, 1965 made the entries of payments said to have been made on April 14, 1966 and August 7, 1966. The second appellant had admitted that he received the payment towards Bill No.11 and deposited the same amount in government treasury and that as he did not oblige the CID Inspector by making statement as per his choice, he is roped into this criminal offence. The first appellant states in his defence that the 'gram sewaks' (i.e. VLWs) concerned made only part payment and the balance of Rs.376.58 was realised from his salary on December 1, 1969 and the said amount was deposited in the State Bank of India, Faizabad on December 2, 1969 under Challan No.99. The trial court has convicted the second appellant on the ground that the second appellant knowingly that the bills were forged by the first appellant, received the payment and prepared the receipts Exs.Ka 4 and Ka 5 for Bill No.11 of Book No.7767 and thereby made himself liable for the commission of breach of trust. This charge cannot be sustained both in law and facts for the reasons to be mentioned. Admittedly, the first appellant was in charge of the block at Semrauna till September 2, 1965. According to this charge, the offence is said to have been committed on July 4, 1964 when the second appellant was working in the block of Kurebhar and, therefore, both the appellants cannot be jointly charged on the allegation that on July 4, 1964 they being the public servants of the seed store of Semrauna committed the breach of trust. Secondly, the prosecution has not satisfactorily established the main ingredient of 'dishonestly' against any of the appellants, even though at the worst, it may be said that the first appellant was guilty of dereliction of his duty in not collecting the outstanding amount by taking any appropriate steps in that regard. When the conviction recorded by the trial court under Section 467 is set aside by the High Court as against which no appeal is preferred by the State, the second appellant cannot in any way be fastened with the criminality of misappropriation by issuing the cash receipts in question. A close examination of the entire evidence and documents do not reveal any material, worth mentioning for jointly fastening both the appellants with the offence of criminal breach of trust punishable under Section 409 IPC. ....." (emphasis supplied)

(b) AIR 1996 SC 3390 = 1996 (10) SCC 193 : MANU/SC/0928/1996: (C.Chenga Reddy Vs. State of A.P):

"22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu), MANU/SC/0063/1979 : AIR 1980 SC 499 : 1980 Cri.L.J. 220 : 1980 (3) SCC 110 : 1980 (1) SCR 604) under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. We may reiterate that once the report, Ex.P-11, is ruled out of consideration as inadmissible, then it is not safe to rely on the mere impressions of the witnesses to hold the appellants guilty of the offences alleged against them. The prosecution has failed to establish that in 1979-80, no work of jungle clearance in the Gandipalem Project Division was undertaken and that false and fabricated documents were prepared with a view to misappropriate government funds. The prosecution has not even been able to establish that less work of jungle clearance was undertaken but payment was shown to have been made for excessive work and some amount out of the payments made for the work was thus misappropriated by the appellants in connivance with the contractors. The conviction and sentence imposed against the appellants (which had been reduced by the High Court to a token sentence) under the circumstances cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine paid by the appellants shall be refunded to them." (emphasis supplied)

17. Learned Government Advocate submitted that not following Rule 9 of the Forest (Conservation) Rules, 2003, does not affect the case of the prosecution.

18. In this regard, it is appropriate to incorporate Rule 9 of the Forest (Conservation) Rules, 2003, which reads as follows:

"Rule 9: Proceedings against persons guilty of offences under the Act.--(1) The Central Government, may, by notification, authorize any officer not below the rank of Conservator of Forests or the concerned forest officer having territorial jurisdiction over the forest land in respect of which the said offence is said to have been committed, to file complaints against the person(s) prima facie found guilty of offence under the Act or the violation of the rules made thereunder, the Court having jurisdiction in the matter: Provided that no complaint shall be filed in the Court, without giving the person(s) or officer(s) or authority(s) against whom the allegations of offence exist, an opportunity to explain his or their conduct and to show cause, by issuing a notice in writing of not less than sixty days as to why a complaint should not be filed in the Court against him or them for alleged offences. (2) The officer authorised by the Central Government in sub-rule (1) may require any State Government or its officer or any person or any other authority to furnish to it within a specified period any reports, documents, statistics and any other information related to contravention of the Act or the rules made thereunder, considered necessary for making a complaint in any court of jurisdiction and every such State Government or officer or person or authority shall be bound to do so."

19. While considering the arguments advanced by learned counsel for both sides and the decisions relied on by the learned counsel for the appellants-accused, it is seen that, admittedly, in these cases, the employer has not issued any show cause notice to the appellants-accused before preferring the complaints and thereby, the principles of natural justice have not been followed. As per Rule 9 of the Forest (Conservation) Rules, 2003, before preferring the complaint, a show cause notice has be given in writing, giving 60 days' time as to why the complaint should not be filed in the Court against a person for the alleged offence. Admittedly, no show cause notice giving 60 days' time, has been issued to the appellants-accused and no chance has been given for explaining their stand. In such circumstances, I am of the view that the principles of natural justice have not been followed before preferring the complaints. Furthermore, even if there is any violation of Financial Code/Forest Code/ordinary norms or procedures, for the behaviour of Government official and contractor, that too, particularly, in respect of allotment of work on nomination basis, no criminal liability will be fastened. Hence, in the present cases, I am of the view that the entire case of the prosecution is vitiated for not following Rule 9 of the Forest (Conservation) Rules.

IV. Whether the delay in filing the charge sheets and disposal of the cases, vitiates the conviction?

20. Learned counsel for the appellants-accused submitted that the alleged misappropriation and falsification of records, are said to have taken place between 1988 and 1989 and the complaints have been registered and final reports have been filed only in 1996 and the cases have been disposed of by the trial Court on 30.5.2002. He further contended that as per the rights conferred under the Constitution of India, the appellants-accused are entitled for speedy trial and earlier disposal of the cases and to substantiate the same, the learned counsel for the appellants-accused relied upon the following decisions: (a) 2009 (2) SCC (Cri) 95 = 2009 (3) SCC 355 : Vakil Prasad Singh Vs. State of Bihar:

"24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions (sic prosecutions) is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.

25. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time-frame for conclusion of trial. ....

29. We have no hesitation in holding that at least for the period from 7-12-1990 till 28-2-2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant."

(b) 1992 (1) SCC 225 (Abdul Rehman Antulay Vs. R.S.Nayak):

"86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is-- who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on--what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell,J. in Barker (33 L.Ed. 2d. 101) "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White,J. in U.S. v. Ewell (15 L.Ed. 2d 627) in the following words: '... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accuseds plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker (33 L.Ed. 2d 101) and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied in a given case.

(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order--including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded--as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."

21. Repudiating the said contention, learned Government Advocate relied upon the decision of the Supreme Court reported in 2002 (4) SCC 578 (P.Ramachandra Rao Vs. State of Karnataka), which is a decision of the Constitution Bench of the Supreme Court, consisting of Seven Honourable Judges, and submitted that it is true that every citizen has a right for speedy disposal of cases, but merely because there is a delay, it will not vitiate the case of the prosecution. In view of the said Constitution Bench decision of the Supreme Court consisting of Seven Honourable Judges, reported in 2002 (4) SCC 578, which upheld the earlier decision of the Constitution Bench of the Supreme Court consisting of five Honourable Judges, reported in 1992 (1) SCC 225 : 1992 SCC (Cri) 93 (Abdul Rehman Antulay Vs. R.S.Nayak). In the said decision reported in 2002 (4) SCC 578, the Seven-Judge Bench of the Supreme Court held that the declaration of law made by the Constitution Bench of five learned Judges of the Supreme Court, in the decision reported in 1992 (1) SCC 225 : 1992 SCC (Cri) 93 (Abdul Rehman Antulay Vs. R.S.Nayak) still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by any other decision of a Larger Bench. The Seven Judge Bench of the Supreme Court in the said decision reported in 2002 (4) SCC 578 (cited supra) further held as follows: "36. ... All the more so, when there is no reason to doubt the correctness of the decision in A.R.Antulay case (1992 (1) SCC 225 : 1992 SCC (Cri) 93--Abdul Rehman Antulay Vs. R.S.Nayak) and this Bench concurs with the principles laid down therein.

37. Though this Court does not consider itself to be an imperium in imperio or would function as a despotic branch of "the State", the fact that the founding fathers of our Constitution designedly and deliberately, perhaps, did not envisage the imposition of any jurisdictional embargo on this Court, except in Article 363 of the Constitution of India is significant and sufficient enough, in my view, to identify the depth and width or extent of its powers. The other fetters devised or perceived on its exercise of powers or jurisdiction to entertain/deal with a matter were merely self-imposed for one or the other reason assigned therefor and they could not stand in the way of or deter this Court in any manner from rising up to respond in a given situation as and when necessitated and effectively play its role in accommodating the Constitution to changing circumstances and enduring values as a sentinel on the qui vive to preserve and safeguard the Constitution, protect and enforce the fundamental rights and other constitutional mandates--which constitute the inviolable rights of the people as well as those features, which formed its basic structure too and considered to be even beyond the reach of any subsequent constitutional amendment. In substance, this Court in my view, is the ultimate repository of all judicial powers at national level by virtue of it being the summit court at the pyramidal height of administration of justice in the country and as the upholder and final interpreter of the Constitution of India and defender of the fundamentals of "rule of law"."

22. In such circumstances, the question of delay has to be decided by this Court, having regard to the totality of the circumstances of the individual cases. The test is whether the delay is such that it can be called oppressive or unwarranted and if so, it would be violative of Article 21 of the Constitution of India and such trial or proceeding would be liable to be terminated. As held in the decisions of the Supreme Court, mere delay will not affect the merits of the case. However, speedy trial and speedy conclusion of criminal proceedings, is mandatory. In the decision relied upon by the learned counsel for the appellants-accused, in 2009 (2) SCC (Cri) 95 = 2009 (3) SCC 355 (cited supra), the abovesaid two decisions of the Constitution Benches of the Supreme Court reported in 2002 (4) SCC 578 (cited supra) and 1992 (1) SCC 225 (cited supra), have been followed. So, I am of the view that mere delay will not vitiate the conviction. V. Whether the handwriting expert's report is admissible?

23. Next, learned counsel for the appellants-accused would contend that while taking the document examiner/handwriting expert's opinion, the prosecution has not followed the procedures and to substantiate his contention, he relied upon the decision of the Supreme Court reported in 1994 SCC (Cri) 1376 (Sukhvinder Singh Vs. State of Punjab), in which it was held as follows: "19. ... The function of a handwriting expert is to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two sets of writings.

... ... ....

21. The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Shri S.P.Garg, Tehsildar-Executive Magistrate, PW 13. No enquiry or trial was admittedly pending in the Court of the Tehsildar-Executive Magistrate. The enquiry and trial in this case were pending under TADA before the Designated Court only. The direction given by the Tehsildar-Executive Magistrate Shri S.P.Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Executive Magistrate PW 13 to take the specimen writings of the appellant and why the specimen writings were obtained under directions of PW 13 and not of the Designated Court. It is a mystery as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by PW 13, who was not enquiring or trying the case. To a specific question during his cross-examination, PW 13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which the specimen writing of Sukhdev Paul was taken is totally objectionable and against the provisions of Section 73 of the Evidence Act. The Executive Magistrate PW 13 appears to have been too obliging and did not even care to examine the provisions of law before issuing the direction to the appellant. The argument of the learned counsel for the State that since no objection was raised by the appellant when he was called upon to give his specimen writing by PW 13 therefore he cannot be permitted to make a grievance now is only an argument of despair and the silence of the appellant, who admittedly on that day, was not even represented by an advocate, cannot certainly clothe PW 13 with any jurisdiction to issue the directions as envisaged by Section 73 of the Evidence Act. The specimen writing of Sukhdev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and cannot be used against Sukhdev Paul appellant to connect him with the crime."

24. P.W.8 Ramu is the document examiner/handwriting expert. He deposed that he received the disputed signatures with the admitted signatures. The admitted signatures have been obtained from K.Arul, Murugan, Kamaraj and Sekar and P.W.8 has given a report to the effect that the disputed signatures do not tally with the admitted signatures in respect of K.Arul, Murugan, Kamaraj and Sekar. Admittedly, the writings of the appellants-accused have not been obtained. In such circumstances, learned counsel for the appellants-accused would rely upon the decision reported in 1994 SCC (Cri) 1376 (cited supra) in respect of the procedures to be followed for sending the admitted signatures to compare the same with the disputed ones. I am of the view that the investigating agency has not followed the procedures and did not obtain the writings of the appellants-accused and had not sent the writings of the appellants-accused for comparison with the admitted signatures. A negative evidence cannot be proved and only positive evidence can be proved by way of getting the disputed signatures of the appellants-accused. So, it is the duty of the investigating officer to obtain the writings of the appellants-accused and forward the same for comparison with the admitted signatures. But, the investigating officer did not do so. In such circumstances, I am of the view that the prosecution has failed to prove that the disputed signatures are only of the appellants-accused.

VI. Whether the second report of Mr.Thangavelu, Assistant Conservator of Forests, dated 26.8.1989, is a full-fledged report and whether the prosecution based on the said report dated 26.8.1989, is sustainable ?

25. Next, learned counsel for the appellants-accused would contend that Mr.Thangavelu, Assistant Conservator of Forests, has made an inspection after the execution of the work and filed report, dated 18.3.1989. Subsequently, he has also filed another report dated 26.8.1989, on the basis of the instructions of his superiors. But in the report dated 26.8.1989, he has explained each and every work and stated that the work has been done separately and further stated that he has annexed schedule to the report. In his report dated 26.8.1989, he stated that, @ ////// nkYk; kjpg;gpl;Lg; gl;oaypy; mDkjpf;fg;gl;lJ/ bryt[ bra;jJ. fsj;jpy; eilbgw;Ws;s ntiyapd; mst[ jdpahf gl;oay; ,izj;Js;nsd;/ //////@ In respect of each and every areas, Mr.Thangavelu has stated that he has given separate schedule annexed to the report. But the report dated 26.8.1989 does not contain any schedule/annexure. Only on the basis of the report dated 26.8.1989, the complaints have been preferred against the accused, investigation has been done, charges were framed and they were convicted. The report dated 26.8.1989 is not a full-fledged report. No reason has been assigned by the prosecution as to what prompted the complainant to direct P.W.20 Thangavelu, Assistant Conservator of Forests, to inspect the work done by the appellants-accused, and the report was filed subsequently. Learned counsel further submitted that in the earlier report dated 18.3.1989, the said Mr.Thangavelu has not mentioned any mal-practice or dereliction of duty. In the above circumstances, learned counsel for the appellants-accused would contend that on the basis of the incomplete report dated 26.8.1989 submitted by Mr.Thangavelu, the criminal cases have been initiated and the same are bad in law, and hence, the "benefit of doubt" has to be given in favour of the appellants-accused.

26. At this juncture, learned Government Advocate submitted that it is true that in the report dated 26.8.1989, each and every work has been stated and further the estimate for the execution of the work, as to what is the amount allotted, the expenditure meted out by the accused, are also stated, and the report was annexed with the schedule.

27. It is true that in the 8th page of the report, dated 26.8.1989, at the end, the enclosures to the report are indicated as follows:

@,izg;g[

1) ntiy eilg;bgw;Ws;s tptug;gl;oay; 1 Kjy; 9 tiu vz;zpf;if 9/

2) tiug;gl';fs; 1Kjy; 9tiu (4) eP';fyhf) vz;zpf;if 8@

But admittedly, on a perusal of the entire records, the annexure to the report dated 26.8.1989, does not find a place in the records. Hence, I am forced to accept the argument advanced by learned counsel for the appellants-accused that the report dated 26.8.1989 is not supported by the relevant documents, and the said report is not a full-fledged report and it is incomplete. On the basis of the said incomplete report, the complaints have been preferred against the appellants-accused and investigation had been done. Since the said report dated 26.8.1989 is not a full-fledged report and since on that basis, the complaints have been filed and investigation had been done, the prosecution is vitiated in view of the said incomplete report dated 26.8.1989. VII. Other contentions in respect of the facts of the cases:

28. Learned counsel for the appellants-accused contended that for executing the crash plantation scheme, estimate has been prepared and submitted. On that basis only, the funds have been allotted stage by stage, after inspection made by the officer concerned and then only, the funds have been released. Hence, learned counsel submitted that there is no chance for creating false records or misappropriation of the amounts, when the work was executed. Moreover, all the documents have been verified by the authorities then and there and after that only, the funds have been released. Hence, the learned counsel for the appellants-accused contended that the ingredients of Sections 109, 167, 409, 420, 467, 471 and 477-A IPC, are not made out.

29. Learned counsel for the appellants-accused further submitted that the District Forest Officer and the Forest Divisional Officer, made an inspection for sanction of the work and then only, the amounts have been released, as per the provisions of the Forest Code.

30. In this regard, Section 142 of the Forest Code is relevant for the purpose of the case, which reads as follows:

"Check-measurement of works.

Section 142: (1) The principles stated in Article 176, Madras Financial Code, Volume I, should be borne in mind when works are check-measured. No bill should ordinarily be passed for payment without the entries in the measurement book having been check-measured by the Ranger. In any exceptional cases in which check-measurement is not carried out, the reasons should be concisely and clearly noted in the "Remarks" column by the Range Officer. (2) In addition to check measurement by the Rangers, it is an important duty of Divisional Forest Officers during their inspection frequently to check-measure works which are in progress and to initial the measurement book in token of their check. The District Forest Officers and the Conservators should check-measure atleast 25 per cent and 10 per cent respectively of the works done by the Ranger Officers. On the completion report for the work, the Divisional Forest Officer should certify as to the check carried out by him personally. (3) The fact of check-measurement by a Ranger or the Divisional Forest Officer should invariably be noted in the measurement book at the time of check-measurement and the items check-measured should be indicated by the initials of the checking officer, which shall be placed on the left side of the column 'Particulars' in line with item check-measured. (4) The entry 'measured in my presence' by a Ranger or Divisional Forest Officer cannot be accepted as check-measurement.

(5) Conservators should make it a special point to see that these rules are duly observed.

Note:--The categories of works which require immediate check-measurement after completion of the work and before payment be check-measured by the concerned officers before effecting payments. In regard to other categories, check-measurements should be completed within 30-48 days of payment. (G.O.Ms.No.781, Forests and Fisheries, dated 8th September, 1978)

(Chief Conservator of Forests, Reference No.96831/77 D5)."

31. Section 142(1) of the Forest Code states that no bill should ordinarily be passed for payment without the entries in the measurement book, having been check-measured by the Ranger and in any exceptional cases, in which the check-measurement is not carried out, the reason should be concisely and clearly noted in the "Remarks" column by the Range Officer. Section 142(2) of the Forest Code states that in addition to the check-measurement by the Rangers, it is an important duty of Divisional Forest Officers during their inspections frequently to check-measure works which are in progress and to initial the measurement book in token of their check and the District Forest Officers and the Conservators should check-measure atleast 25% and 10% respectively of the works done by the Range Officers and on the complaint report for the work, the Divisional Forest Officer should certify as to the check carried out by him personally. In these cases, as per the report submitted by Mr.Thangavelu, Assistant Conservator of Forests, on 18.3.1989, there was nothing adverse to the appellants-accused. In the abovesaid circumstances, there is no chance for misappropriation of the amounts. Furthermore, no document has been filed to show that during the inspection of the work, the District Forest Officer/Divisional Forest Officer, has made inspection before sanction of the amount.

32. At this juncture, learned counsel for the appellants-accused also submitted that no separate funds have been sanctioned for watering the saplings and due to monsoon failure between June and September in 1988-1989, so many saplings got destroyed due to water scarcity. But those aspects have not been got cleared by the authorities. If the show cause notice had been issued to the appellants-accused, they would have given explanation. Hence, not following the procedures laid down under Rule 9 of the Forest (Conservation) Rules, will cause prejudice to the appellants-accused.

33. Furthermore, the Village Administrative Officers were examined, who in their evidence stated that even though they have issued certificate stating that some of the workers are fictitious persons, the Village Administrative Officers had not worked in the places in question for a long time and the Village Administrative Officers have worked in the places in question only for a short time and without referring any Revenue records, the VAOs. have given the certificates. Furthermore, the workers who have received the coolie, have signed in the receipts and those workers were examined before the Court and the workers have turned hostile, and thus, they have not supported the case of the prosecution.

34. P.W.2 Srinivasan, Divisional Forest Officer, in his evidence has stated that he received the estimate Ex.P-2 for Rs.37,900/- and he gave the sanction order as per Ex.P-3. The amount has been enhanced in view of escalation in the price of materials and A.1 Forest Ranger has submitted another revised estimate Ex.P-4 for Rs.45,700/- and that P.W.2 Srinivasan, Divisional Forest Officer, has sanctioned only Rs.42,600/- and that endorsement is Ex.P-5. In his cross-examination, P.W.2 Srinivasan, Divisional Forest Officer, has fairly conceded that he was not in a position to depose as to whether he inspected the areas after completion of 25% of the work as per the Rules and he stated that the same could be stated only after perusing the documents. P.W.2 stated as follows in his evidence in cross-examination: @ ///// ,e;j jpl;lj;jpd; fPH; Mapu fzf;fhd bcwf;nlh; epy gug;gpy; njhl;lk; mikf;Fk; gzp ele;jJ/ vdnt rk;ge;jg;gl;l nfhl;l td mYtyuhy; midj;J gFjpiaa[k; ghh;itapl KoahJ/ vdnt 25 rjtpfpj gzpia kl;Lk; ntiy Muk;gpf;Fk; nghnjh my;yJ elf;Fk; bghGnjh my;yJ Koe;j gpd;ngh ghh;f;fyhk; vd bghJ tpjp cs;sJ/ eh';fs; bfhLj;j Kd; bjhiff;Fhpa go gzp ele;Js;sjh vd;gij ehd; ghh;j;njdh vd;gij Mtz';fis ghh;j;Jjhd; brhy;y Koa[k;/////@

35. P.W.3 Gopalakrishnan, Accountant in the Forest Crash Plantation Office, has stated that he has received expenditure list marked as Exs.P-6 to P-30. In his evidence, he has fairly conceded that the work has been done only through small contractors and the Forest Ranger alone is having right to obtain signature from the contractors and so, the contractors alone are responsible for the amounts received. He further stated that each and every month, they have sent an objection memo for any deviation in the accounts. He fairly conceded that he has not sent any objection memo for defect in the accounts submitted. P.W.3 in his evidence in cross-examination, has stated as follows: @ //// ,e;j ntiyfs; rpW xg;ge;jjhuh; K:yk; jhd; bra;ag;gl;Ls;sJ/ rpW xg;ge;jjhuh;fSf;F vd jFjp vJt[kpy;iy/ rpW xg;ge;jjhuh;fsplk; xg;ge;j eK:dhtpy; rk;ge;jg;gl;l tdr;rufh; ifbaGj;J th';Fthh;/ ,J jtpu tt[r;rhpYk; rpW xg;ge;jjhuhpd; ifbaGj;J th';FtJ tHf;fk;/ tdth; Kd;dpiyapy; jhd; rpW xg;ge;jjhuUf;F gzk; gl;Lthlh bra;ag;gLk;/ Typahl;fSf;Fhpa gzj;ij rpW xg;ge;jjhuh;jhd; bfhLg;ghh;/ vdnt ,e;j gzj;jpw;F rpW xg;ge;jjhuh;fs; bghWg;g[/ tt[r;rhpy; bjhif TLjyhfnth my;yJ Fiwthfnth ,Ue;jhy; my;yJ ntW Fiw ,Ue;jhy; ,ij epth;j;jp bra;tjw;fhf Ml;nrgiz Fwpg;g[fs; gpujp khjKk; rk;ge;jg;gl;l mYtyUf;F mDg;g[nthk;/ gz tpc&aj;jpy; FiwghL cs;sjhf Ml;nrgiz Fwpg;g[ vJt[k; mDg;gtpy;iy/ /////@

36. P.W.4 Chandrasekaran is the person who succeeded A.1 Forest Ranger, in his office. In his cross-examination, P.W.4 has fairly conceded that he has not personally inspected the work done in 1988 and not surveyed the same. He stated that he went along with the Committee. He denied the suggestion that all the work has been done properly.

37. P.W.5 Selvaraj, Draft Works Officer (tiu bjhHpy; mYtyh;) in the Office of the Conservator of Forests, has stated that he did not go to the places where the work was done and only on the basis of the documents, he filed the charge-sheet (Fw;wj; jhs;). P.W.6 Thangavelu, Village Administrative Officer, has stated that he enquired several persons residing in the village, but in cross-examination, he fairly conceded that he has not seen 'A' Register, chitta book, family cards. He also fairly conceded that for doing coolie work, the residents of other villages were also engaged. P.W.7 Assistant in Revenue Divisional Office, stated that he has verified whether the names of the persons in the village find a place in the Voter's list, as indicated in Ex.P-35 letter of the Revenue Divisional Officer to the Deputy Superintendent of Police, Vigilance and Anti-Corruption Wing, and he has gone to the extent of saying that he has not verified the voter's list of 1989. P.Ws.9 to 12, 14 to 19 and 21 have categorically stated that they did the work, received the amounts and have signed in the receipts. P.W.13 Arul belonging to Boothanatham Village, alone stated that the signature in Ex.P-14 is not belonging to him. In his evidence, he has stated that Ex.P-36 contains his signature. He fairly conceded that another person, by name Arul is available in the village, who was not examined before Court.

38. In Crl.A.No.1033 of 2002, during the course of trial, P.Ws.1 to 22 were examined and Exs.P-1 to P-49 were marked. A.1 is the Forest Ranger and A.2 and A.3 are the Foresters. They have worked as Government servants from April 1988 to March 1989. Bommidi Forest Range Boothanatham Miscellaneous Forest Crash Plantation Bit-1, was implemented. It is alleged that during the process of execution of the work of the forest crash plantation, A.1 to A.3 have falsified the records to show that they engaged the workers for executing the work as mentioned in the estimate submitted by A.1 Forest Ranger. In pursuance of the estimate Ex.P-2, P.W.2 Srinivasan, Divisional Forest Officer has sanctioned the amount for execution of the work, as seen from Ex.P-3. Due to escalation of price, the accused gave revised estimate as per Ex.P-4, which has also been considered by P.W.2 Forest Divisional Officer and the amount was sanctioned as per Ex.P-5, after scrutinising the same. P.W.3 Gopalakrishnan, Accountant in the Forest Crash Plantation Office then and there received the expenditure list. P.W.4 Chandrasekaran, who succeeded A.1 Forest Ranger, inspected the work executed by the accused and at that time, he came to know that some of the work has not been executed by the accused and he came to know that false records have been created with an intention to cheat and it is alleged that the accused misappropriated the amounts. P.W.5 Selvaraj, Draft Works Officer (tiu bjhHpy; mYtyh;) in the Office of the Conservator of Forests, has stated that P.W.4 Forest Ranger and P.W.20 Mr.Thangavelu, Assistant Conservator of Forests, made an inspection of the work executed by the accused and gave reports. P.W.6 V.A.O gave certificate, stating that the receipts given by A.1 to A.3 are pertaining to only fictitious persons and those persons were not residing in Boothanatham Village. Likewise, P.W.7 Annamalai, Assistant in the Revenue Divisional Office also stated that he verified whether the persons were residing in the Village as per the Voter's list, as indicated in the RDO's letter/Ex.P-35. P.W.8 Ramu, Document Examiner/handwriting expert, received the disputed signatures and the admitted signatures of the witnesses and gave report. The other witnesses/workers were the signatories to the receipts for the work done and they have turned hostile. P.W.1 Principal Chief Conservator of Forests, accorded sanction for prosecuting the accused and in pursuance of the same, complaint was filed, case was taken up and the investigation was done by Mr.Krishnasamy, Deputy Superintendent of Police in Vigilance and Anti-Corruption Wing and the final report was filed.

39. In Crl.A.No.1034 of 2002, during the course of trial, P.Ws.1 to 25 were examined and Exs.P-1 to P-45 were marked. Learned counsel for the appellants-accused would contend that Ex.P-38 report, dated 26.8.1989, submitted by Mr.Thangavelu, Assistant Conservator of Forests to the Conservator of Forests, is a tainted report and it is not full-fledged report. As already discussed in the earlier paragraphs, even though so many annexures have been mentioned in the said subsequent report dated 26.8.1989 submitted by Mr.Thangavelu, Assistant Conservator of Forests, no annexure finds place in the entire case records. So, the argument advanced by learned counsel for the appellants-accused that without the annexures to the said report dated 26.8.1989, it could be only stated as an incomplete report. On that basis only, the complaint was given. Learned counsel for the appellants-accused would further contend that the evidence of P.Ws.7 to 9 V.A.Os., is not helpful to the case of the prosecution. As per the evidence of P.W.10 Ramu Document Examiner/handwriting expert, there is no evidence to show that A.1 and other accused fabricated the documents. To substantiate the same, learned counsel culled out portion of the evidence of P.Ws.7 to 9. P.W.9 V.A.O. has given Ex.P-27 certificate and in his cross-examination, he has fairly conceded that in 1993, he examined whether the person named Govindasamy, S/o Gopal, was residing in the place. But he fairly stated that he has not made enquiry whether such person was residing during the period 1988-1989. His certificates Exs.P-27 and 28 are not helpful. P.W.8 V.A.O stated that one Parasuraman, S/o Parasuraman, was residing at Khadiripuram and he gave a certificate Ex.P-29 and in his cross-examination, he stated that he has not made enquiry whether such a person was residing there in the village. P.W.9 V.A.O. is the author of Ex.P-30 certificate and in his evidence, he has stated that from 1988 to 1990, there is a chance for the person named Mani alias Subramani, S/o Chinnanan, residing in the place. P.W.12 Mariappan deposed that he signed in Exs.P-8 to P-11 receipts and he turned hostile. A suggestion was posed to him by the prosecution that Exs.P-8 to 11, are signed by him without doing any work at the request of the Forester Jayagopal and the said suggestion was denied by him. P.W.13 Mallan in his cross-examination stated that himself and 15 others did the work in the thorny bushes of nearly 10 to 15 acres and daily they have received the coolie, but at that time, no signature has been obtained. He denied the suggestion that he signed the filled form. P.W.14 is the signatory of Ex.P-10 receipts and he stated that he did the work and signed the same, but he has stated that he was not doing any work as per Ex.P-9 receipt and as per the directions of Marri, the Contractor, he signed the receipts. In his evidence, he has stated that as soon as he did the work, coolie has been then and there given to him. P.W.15 has stated that he has been digging the pit and planting the saplings and he got the coolie. A suggestion was posed to him by the prosecution that he has not done the work as mentioned in Ex.P-19, which was denied by him. P.W.16 turned hostile and he stated that he did the work as per Ex.P-21 receipt and he received the amount. P.Ws.17 to 19 and 21 to 23 were not supporting the case of the prosecution.

40. In Crl.A.NO.1035 of 2002, during the course of trial, P.Ws.1 to 25 were examined and Exs.P-1 to P-54 were marked. P.W.6 Christopher, V.A.O. gave certificates Ex.P-33, stating that no person by name, Perumal, S/o Kanniappan, Chinnavan, S/o Krishnan were available in the place and he also stated that he has given Ex.P-34 certificate stating that except the three persons, namely Radhakrishnan, S/o Periannan, Rajagopal, S/o Chitthan and Ganesan, S/o Kaveri Gounder, in the same names, no person was available in the village. In his cross-examination, he has fairly conceded that he has not made any enquiry whether those named persons were residing in the village in the year 1988-89. P.W.7 is also V.A.O., who has given certificate Ex.P-35 stating that in the name of Arokiasamhy, S/o Theras, only one person was available and no other person was available. In his cross-examination, he stated that he has not perused the voter's list, chitta, adangal, 'A' Register, etc., to show that during 1988-90, whether such a person was available. P.W.8 who is also V.A.O., stated that even though he has given Ex.P-36 certificate, stating that one Saravanan, S/o Ramadas, was available in the village, but in the same name, no other person was available. In his cross-examination, he has also deposed that he has not perused any Government documents, such as Voter's list, 'A' Register, chitta, adangal, etc. He has also stated that he did not enquire whether in the same name, any other person was residing during 1988-90. P.W.10 has been examined to show that he has signed Ex.P-19 receipt and he signed on the same on the request of one Chellappan, but the said Chellappan is not the accused before the Court.

41. In Crl.A.No.1036 of 2002, during the course of trial, P.Ws.1 to 19 were examined and Exs.P-1 to P-44 were marked. P.Ws.6 to 9, V.A.Os, have given certificates Exs.P-24 to 27 respectively, stating that some persons were not available in the village, but in their cross-examination, they have categorically admitted that they have not perused any public documents, such as Voter's list, patta, adangal, 'A' Register, etc., to show as to whether the persons named in the certificates were available during the period 1988-1990. So, their evidence is not helpful to the case of the prosecution. P.W.11 (Ex.P-29), P.W.12 (Ex.P-7), P.W.13 (Ex.P-14), P.W.14 (Ex.P-15), P.W.15 (Ex.P-30), P.W.16 (Ex.P-18) and P.W.17 (Exs.P-19 and 34), have all not supported the case of the prosecution, stating that they did the work and received the coolie and singed the respective exhibits/documents. P.W.18 Mr.Thangavelu, Assistant Conservator of Forests, in his evidence stated that he made inspection of the work and filed report stating that the pits have been dug and 240 tamarind trees/saplings and brick wall has been constructed and 146 of the said saplings were in good condition and others got destroyed due to failure of monsoon and the height of the living saplings is 1 meter, and because of the monsoon failure, 50% to 60% of the saplings alone were in the living condition. He gave report Ex.P-36. In Ex.P-37, he has given another report and mentioned the defects. In the earlier report, he has not mentioned any defects.

42. In Crl.A.No.1037 of 2002, during the course of trial, P.Ws.1 to 12 were examined and Exs.P-1 to P-22 were marked. P.W.6 V.A.O. issued Exs.P-18 and P-19 certificates and his evidence is not helpful to the case of the prosecution. P.W.7 (Ex.P-7), P.W.8 (Ex.P-12), P.W.9 (Ex.P-15), P.W.10 (Ex.P-11), P.W.11 (Ex.P-10), are all workers and they have turned hostile and not supported the case of the prosecution and some of them stating that they did the work, received the coolie and singed the respective receipts/exhibits/documents and some of them denied the work and they did not receive the coolie as per the respective receipts/exhibits/documents.

43. In Crl.A.No.1038 of 2002, during the course of trial, P.Ws.1 to 11 were examined and Exs.P-1 to P-17 were marked. P.W.6 deposed that he has not signed Ex.P-7 and in his cross-examination, he stated that so many persons were available in the village in his name. P.W.7 (Ex.P-9), P.W.8 (Ex.P-8), P.W.9 (Ex.P-12), P.W.10 (Ex.P-10), have not supported the case of the prosecution and stated that they did the work, received the coolie and singed the respective exhibits/documents and some of them did not say so.

44. In Crl.A.No.1039 of 2002, during the course of trial, P.Ws.1 to 10 were examined and Exs.P-1 to P-17 were marked. On the side of the accused, D.W.1 was examined. P.W.6 V.A.O. issued Exs.P-13 and P-14 certificates and he stated that even though he has given certificates to show that the persons mentioned in Exs.P-13 and P-14 were not available in the same names, and in his cross-examination, he stated that he enquires only in 1993, but he has not made any enquiry in respect of the period 1988-90 whether such persons were available and he fairly conceded that he has not perused the Government documents, such as Voter's list, chitta, adangal, etc. He also stated that he could not confirm that similar persons were not available during 1988-90. His evidence is not helpful to the case of the prosecution. P.W.7 (Ex.P-7), P.W.8 (Ex.P-10), P.W.9 (Ex.P-8) are all workers who have turned hostile and stated that they have done the work, received the coolie and signed the receipts/exhibits.

45. In Crl.A.No.1040 of 2002, during the course of trial, P.Ws.1 to 10 were examined and Exs.P-1 to P-15 were marked. P.W.7 stated that he signed Ex.P-9 receipt at the request of A.2 and stated that no work was done as per Ex.P-9. P.W.8 (Ex.P-7) and P.W.9 (Ex.P-8) have not supported the case of the prosecution. At this juncture, while considering the evidence of P.W.5 Chandrasekar, who succeeded A.1 Forest Ranger, deposed in the Court that 7,040 bags measuring 10' x 20' and 12,000 bags measuring 13' x 25', in the garden, have not been filled up and no water process work has been done. In his cross-examination, he has stated that he has taken the charge only on 25.5.1989 and he denied the suggestion stating that it is not possible to count as to how many pits have been dug, how many bushes have been removed and how many stone-kennel (fy; TL) has been put up. He also denied the suggestion that the defects have been mentioned in the report only at the request of the officer and he has not personally inspected the place. In the above circumstances, as already stated, the second report dated 26.8.1989 submitted by Mr.Thangavelu, Assistant Conservator of Forests, is not consisting any annexures and enclosures to prove as to what are all the defects pointed out by the Inspecting Committee.

46. In Crl.A.No.1041 of 2002, during the course of trial, P.Ws.1 to 9 were examined and Exs.P-1 to P-18 were marked. On the side of the accused, D.W.1 was examined. P.W.7 V.A.O. has issued Exs.P-14 and P-15 certificates and in his cross-examination, he fairly conceded that he did not peruse any public documents, like Voter's list, adangal, patta, chitta, etc., before issuing the certificates. P.W.8 (Ex.P-9) turned hostile and he has not supported the case of the prosecution. It is alleged that without doing work, the accused have misappropriated Rs.3,300/- and Rs.1,920/-, but it has not been proved by way of examining the witnesses.

47. In Crl.A.No.1042 of 2002, during the course of trial, P.Ws.1 to 7 were examined and Exs.P-1 to P-16 were marked. On the side of accused, D.W.1 was examined. P.W.6 V.A.O. who is the author of Exs.P-12 and P-13 certificates, and even though he has issued the certificates stating that no such persons were available in the same area, in his cross-examination, he fairly conceded that at the time of issuance of the certificates, he has not perused the Government documents like Voter's list, chitta, adangal, etc., and he was not confident in his evidence to state that during the period 1988-1990, no such persons were available in the village. So, his evidence is not helpful. D.W.1 was examined and in his evidence he has stated that he was Forester and responsible for various places as stated by him in respect of the areas pertaining to C.C.Nos.14 of 1996, 15 of 1996, 17 of 1996 and 25 of 1996 and in his cross-examination, he has stated that in the portions which were under his control, after the work has been done, the expenditure sheet has been perused by him and he distributed the amounts and he signed the receipts. It is alleged by the prosecution that the accused falsified the records and misappropriated the amount. But there is no evidence to show that the documents were falsified and no person was examined to show that the documents--Exs.P-7 to 9 have been concocted or fabricated for the purpose of the case.

48. In Crl.A.NO.1043 of 2002, during the course of trial, P.Ws.1 to 11 were examined and Exs.P-1 to P-17 were marked. P.W.7 (Ex.P-9), P.W.8 (Ex.P-10), P.W.9 (Ex.P-11) and P.W.10 (Ex.P-8), have not supported the case of the prosecution. Even though they have admitted that they signed Exs.P-8 to 11, there is no evidence to show that the accused concocted or fabricated the documents for misappropriating the amount.

49. In Crl.A.No.1044 of 2002, during the course of trial, P.Ws.1 to 13 were examined and Exs.P-1 to P-21 were marked and on the side of the accused, A.2 was examined as D.W.1. P.W.6 V.A.O (Ex.P-14), P.W.7 V.A.O (Ex.P-15), P.W.9 V.A.O (Ex.P-17) and P.W.10 V.A.O (Ex.P-18) have issued the respective certificates and stated that they have not made any enquiry nor perused the Government documents, like chitta, adangal, patta, 'A' Register, voter's list, etc., to find out whether such persons as stated in the certificates, were available in the village. The evidence of P.Ws.6, 7, 9 and 10 V.A.Os. is not helpful to the case of the prosecution. P.Ws.11 and 12 stated that they did the work and received the amount and signed the receipts. They have not supported the case of the prosecution.

50. In Crl.A.No.1045 of 2002, during the course of trial, P.Ws.1 to 8 were examined and Exs.P-1 to P-17 were marked and on the side of the accused, A.2 was examined as D.W.1. P.W.7 V.A.O. issued Ex.P-13 certificate stating about the non-availability of a person in the village and he admitted that he has not made enquiries to find out that such person was residing in the village in 1988-89. There is no evidence to show that the receipts Exs.P-7 to P-9 were concocted for the purpose of the case.

51. In Crl.A.No.1046 of 2002, during the course of trial, P.Ws.1 to 9 were examined and Exs.P-1 to P-16 were marked. P.W.7 (Ex.P-8) and P.W.8 (Ex.P-10) are workers and they have not supported the case of the prosecution in respect of the exhibits/receipts.

52. In Crl.A.No.1047 of 2002, during the course of trial, P.Ws.1 to 10 were examined and Exs.P-1 to P-20 were marked. On the side of the accused, D.W.1 was examined and Ex.D-1 was marked. P.W.7 V.A.O stated that he issued Ex.P-17 certificate about the non-availability of the persons in the village and his evidence is not helpful to the case of the prosecution. P.W.8 (Ex.P-9) and P.W.9 (Ex.P-8) are workers and they have not supported the case of the prosecution and stated that they did the work, received the coolie and signed on the exhibits/receipts. Exs.P-7 to 13 receipts, have not proved the case of the prosecution.

53. In Crl.A.No.1048 of 2002, during the course of trial, P.Ws.1 to 11 were examined and Exs.P-1 to 21 were marked. P.W.7 V.A.O. (Ex.P-16) and P.W.8 V.A.O. (Exs.P-17 and 18) stated that they have issued the respective certificates and they have not perused the Voter's list, chitta, adangal, 'A' Register, etc., before issuing the certificates to find out whether such persons were available during the relevant period. P.Ws.9 and 10 admit that they are the authors of Ex.P-10 and P-9 receipts respectively and said that they have not done the work and not received any amount.

54. As discussed above, even though the prosecution has filed the exhibits/documents/receipts, the evidence of the V.A.Os and the workers, is not helpful to conclude that the documents are concocted or fabricated and there is no evidence to show that the appellants/accused forged the documents, falsified the accounts with an intention to cheat the Government and committed breach of trust by filing incorrect documents, with a further intention to cause injury to the Government. So, the ingredients of the provisions of law, with which the accused are charged, are not made out and not proved by the prosecution beyond reasonable doubt. Hence, the trial Court committed error in convicting the appellants-accused for the said offences. The argument advanced by learned counsel for the appellants-accused that the evidence is not sufficient to substantiate the charges levelled against the accused, merits acceptance. The evidence is not sufficient to conclude that the false records have been created by A.1 and A.3, in connivance with A.2, with a view to misappropriate the amounts. Those exhibits/documents/receipts filed by the prosecution, have not proved that they were concocted documents and created by the accused themselves and the signatures in those documents were signed and fabricated by the accused. The handwriting expert has not deposed that the signatures in those documents are only belonging to the appellants-accused.

55. Further, as per the evidence, it was proved that A.1 has submitted the estimates for each and every work and Mr.Srinivasan, Forest Divisional Officer, deposed that after receiving the estimates for the work, on a perusal of the same, he gave the sanction order and even due to escalation of the price, A.1 gave another estimate and on a perusal of the same, he gave the sanction order only in accordance with law, but not as per the revised estimate submitted by A.1 Forest Ranger. Mr.Gopalakrishnan, the Accountant in the Forest Crash Plantation office, stated that he received the expenditure list and in his cross-examination, he admitted that the work has been done only by the scheduled contractors and small contractors and in some time, the work has been done directly by the Forest Department. But the present work has been done by the small contractors. He further stated that there is no guideline/qualification for the contractors for appointing them to execute the work. The Forest Ranger alone obtained the signatures in the agreement forms and vouchers, and in the presence of the Forester, the amount has been disbursed to the small contractors. The contractors alone disbursed the amount to the workers. So, the contractors alone were responsible for the disbursal of the amounts to the workers. P.W.3 Gopalakrishnan, further stated in his evidence in cross examination, as follows: @bc&l;a{h; fhz;l;uhf;lh;. RpW fhz;l;uhf;lh; Mfpa ,Uthplk; tdj;Jiw rk;ge;jg;gl;l ntiyfis xg;gilg;gJz;L/ neuoahf Typahl;fis mkh;j;jpa[k; gzpia bra;thh;fs;/ ,e;j ntiyfis rpW xg;ge;jjhuh; K:yk;jhd; bra;ag;gl;Ls;sJ/ rpW xg;ge;jjhuh;fSf;bfd jFjp vJt[kpy;iy/ rpW xg;ge;jjhuh;fsplk; xg;ge;j eK:dhtpy; rk;ge;jg;gl;l tdr;rufh; ifbaGj;J th';Fthh;/ ,J jtpu tt[r;rhpYk; rpW xg;ge;jjhuhpd; ifbaGj;ij th';FtJ tHf;fk;/ tdth; Kd;dpiyapy;jhd; rpW xg;ge;jjjhuUf;F gzk; gl;Lthlh bra;ag;gLk;/ Typahl;fSf;Fhpa gzj;ij rpW xg;ge;jjhuh;jhd; bfhLg;ghh;/ vdnt ,e;j gzj;jpw;F rpW xg;ge;jjhuh;fs; bghWg;g[/ tt[r;rhpy; bjhif TLjyhfnth my;yJ Fiwthfnth ,Ue;jhYk;. my;yJ ntW Fiw ,Ue;jhy; ,ij epth;j;jp bra;tjw;fhf Ml;nrgiz Fwpg;g[fs; gpujp khjKk; rk;ge;jg;gl;l mYtyUf;F mDg;g[nthk;/ gz tpc&aj;jpy; FiwghL cs;sjhf Ml;nrgiz Fwpg;g[ vJt[k; mDg;gtpy;iy/ 12 fpuhkj;jpy; tut[ bryt[fis buhf;f tut[ fzf;F g[j;jfj;jpy; gf;fk; 23tJ bjhFjpapy; tdr;ruf mYtyh; gjpt[ bra;Js;shh;/@

56. Furthermore, there is no document to show as to why the Forest Divisional Officer has not followed the procedures laid down in Section 142 of the Forest Code. The check measurement register has not been placed before Court and this shows that the vital document has not been produced to show as to whether the accused have executed the work in accordance with the directions and guidelines given by their superiors. As per Section 142(1) of the Forest Code, no bill should ordinarily be passed for payment, without the entries in the measurement book, having been check-measured by the Ranger. At this juncture, it is appropriate to consider the evidence of P.W.2 Srinivasan, Forest Divisional Officer, who stated in his evidence in cross examination, as follows: @ //// ,e;j jpl;lj;jpd; fPH; Mapu fzf;fhd bcwf;nlh; epy gug;gpy; njhl;lk; mikf;Fk; gzp ele;jJ/ vdnt rk;ge;jg;gl;l nfhl;l td mYtyuhy; midj;J gFjpiaa[k; ghh;itapl KoahJ/ vdnt 25 rjtpfpj gzpia kl;Lk; ntiy Muk;gpf;Fk; nghnjh my;yJ elf;Fk; bghGnjh my;yJ Koe;j gpd;ngh ghh;f;fyhk; vd bghJ tpjp cs;sJ/ eh';fs; bfhLj;j Kd; bjhiff;Fhpa go gzp ele;Js;sjh vd;gij ehd; ghh;j;njdh vd;gij Mtz';fis ghh;j;Jjhd; brhy;y Koa[k;/ ////@

In his evidence, P.W.2 Srinivasan, Forest Divisional Officer stated that without perusing the records, he was not able to give answer as to whether he has inspected the place then and there and whether the work has been executed by the accused, after completion of 25% of the work.

57. The above oral and documentary evidence in all the cases, has clearly proved that some of the workers have done the work and received the coolie/daily wages for the work done and the persons who have signed the receipts for the work done, have not supported the case of the prosecution and some of the workers stated that they have not done the work and not received the coolie/daily wages. The evidence of the document examiner/handwriting expert, is not positive and the signatures/writings of the accused have not been obtained and sent for handwriting expert's opinion. Since there is no evidence, I am of the view that the prosecution has miserably failed to prove that the accused have falsified the records/receipts and concocted and fabricated the documents with a view to cheat with dishonesty and with an intention to cheat the Government and misappropriated the amounts without doing work assigned to the accused.

58. Now, it is relevant to notice the provisions of law under which the appellants/accused have been convicted by the trial Court.

(a) Section 167 IPC reads as follows:

"Section 167 IPC: Public servant farming an incorrect document with intent to cause injury.--Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Section 167 IPC deals with "public servant farming an incorrect document with intent to cause injury". There is no evidence before the Court to show that even though A.1 to A.3 are public servants, they have framed incorrect documents with an intention to cause injury to the Government. In such circumstances and in view of the discussion made above, I am of the opinion that the prosecution has miserably failed to prove that the appellants-accused are guilty of the offence under Section 167 IPC. (b) Section 467 IPC reads as follows:

Section 467 IPC: Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, moveable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 467 IPC deals with forgery of valuable security, will, etc. As already stated, there is no evidence to show that the accused forged the receipts and other documents without executing the work.

(c) Section 471 IPC reads as follows:

"Section 471 IPC: Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."

Section 471 IPC deals with "using as genuine a forged document or electronic record. There is no evidence to show that the appellants-accused were framing incorrect document with an intention to cause injury to the Government. As discussed above, the appellants-accused are not guilty of the offences under Sections 167 and 467 IPC. Further, this Court has already given a finding that the receipts produced before Court are not the forged documents. Hence, the appellants-accused are also not guilty of the offence under Section 471 IPC, as the ingredients of Section 471 IPC are not made out. (d) Section 409 IPC reads as follows:

"Section 409 IPC: Criminal breach of trust by public servant, or by banker, merchant or agent:--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Section 409 IPC deals with "Criminal breach of trust by public servant, or by banker, merchant or agent". As per the evidence of P.W.3 Gopalakrishnan, Accountant in the Office of the Forest Crash Plantation, as per the Rules, after receipt of the estimate from P.W.1 Principal Chief Conservator of Forests, they have sanctioned the amount and as per the Forest Code, they have to issue the cheques stage by stage after verifying the work executed by them. Furthermore, they have fairly stated that every month, after receipt of the receipts in respect of the work executed, they audited the same. If any defect has been detected, immediately, the audit slip has been issued to rectify the same. He fairly conceded that they have not issued any audit slip in respect of the work executed by the accused in the crash plantation scheme. In the above circumstances, I am of the view that the prosecution has miserably failed to prove that the accused are guilty of the offence under Section 409 IPC. (e) Sections 420 and 477-A IPC state as follows:

"Section 420 IPC: Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." "Section 477-A IPC: Falsification of accounts.-- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any, such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.--It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed."

Section 420 IPC deals with "Cheating and dishonestly inducing delivery of property" and Section 477-A IPC deals with "falsification of accounts". There is no evidence before Court to show that the appellants-accused have cheated dishonestly and falsified the accounts. The evidence of P.W.3 Gopalakrishnan, Accountant in the Forest Crash Plantation Office, has clearly proved that then and there, the accounts submitted, were verified and they have not given any audit slips. Furthermore, the work has been executed with the help of small contractors and the contractors alone have got the receipts after payment of coolie to the daily workers. In such circumstances, I am of the view that the trial Court is not correct in holding that the appellants-accused are guilty of the offence under Sections 420 IPC and 477-A IPC. (f) Section 109 IPC deals with "Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment". Since A.1 was not found guilty under Section 109 IPC, the abetment for commission of the offence will not arise. (g) The trial Court has also convicted the appellants-accused under the provisions of the Prevention of Corruption Acts, 1947 and 1988.

Sections 5(1) and 5(2) of the Prevention of Corruption Act, 1947, reads as follows:

"Section 5: Criminal misconduct in discharge of official duty.--(1) A public servant is said to commit the offence of criminal misconduct:

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Sec.161 of the Indian Penal Code (45 of 1860), or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or

(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:

Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year."

(h) Section 13 of the Prevention of Corruption Act, 1988 reads as follows:

"Section 13: Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows, to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(b) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(c) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine."

59. In the present cases, as already stated, there is no evidence to show that the appellants-accused have misappropriated the amounts or cheated the Government and committed the falsification of the records. In such circumstances, the ingredients of the provisions of Sections 109, 167, 409, 420, 467, 471 and 477-A of the IPC, Section 5(2) read with Sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, are not made out and the appellants-accused are not guilty of the offences for which they were convicted by the trial Court.

60. In the above circumstances, I am of the view that the prosecution has miserably failed to prove that the appellants-accused are guilty of the charges levelled against them, beyond reasonable doubt. On a perusal of the materials available on record and oral and documentary evidence, I am of the view that the trial Court committed error in convicting the appellants-accused under the provisions of the IPC and under the provisions of the Prevention of Corruption Acts, 1947/1988 and hence, the conviction and sentence imposed on the appellants-accused are liable to be set aside.

61. For the foregoing reasonings, it could be concluded that:

(i) P.W.1 Principal Chief Conservator of Forests, is the competent person to accord sanction for prosecuting A.1 Forest Ranger and as observed earlier, the sanction order is a speaking order and is in accordance with law.

(ii) Even though Mr.Krishnaswamy, Deputy Superintendent of Police, the investigating officer, i.e. the complainant, who himself is the investigating officer, it will not vitiate the case of the prosecution.

(iii) Even though speedy trial is a fundamental right of the accused, the delay in filing the charge-sheets/final reports and conclusion of the trial in these cases before the trial Court, had not affected the accused and the accused are no way prejudiced and hence, it will not vitiate the conviction.

62. However, the violation of the guidelines and instructions, has not fastened the criminal liability on the appellants-accused. Furthermore, non-compliance of Rule 9 of the Forest (Conservation) Rules, 2003, will vitiate the prosecution case, since the principles of natural justice, have not been followed.

63. As already discussed in the earlier paragraphs, the prosecution has miserably failed to prove that the receipts/documents produced by the prosecution, were concocted by the appellants-accused with an intention to cheat the Government and cause injury and misappropriate the amounts, beyond reasonable doubt. The ingredients of the provisions of law with which the appellants-accused are charged/convicted, have also not been made out and the prosecution has not proved its case beyond reasonable doubt. Therefore, the "benefit of doubt" has to be given in favour of the appellants-accused and the conviction and sentence imposed on the appellants-accused in all these cases, by the trial Court, are liable to be set aside.

64. In the result:

(a) The Criminal Appeals are allowed.

(b) The conviction and sentence imposed on the appellants-accused, in all these appeals, are set aside.

(c) The appellants-accused are acquitted of all the charges.

(d) The fine amounts, if paid by the appellants-accused, shall be refunded.

(e) The bail bonds, if any executed by the appellants-accused shall stand cancelled.