"Yawning Gaps In Investigation": Telangana High Court Slams Probe In Pre-Matric Scholarship Scam, Acquits Four
The Telangana High Court has set aside the "circumstantial" conviction order passed by the Trial Court against those accused in an alleged pre-matric scholarship scam, stating that the 'basics of admissibility in criminal trial have been utterly disregarded.'"A reading of the evidence of witnesses and findings of the learned Special Judge, the basics of admissibility of evidence in criminal...
The Telangana High Court has set aside the "circumstantial" conviction order passed by the Trial Court against those accused in an alleged pre-matric scholarship scam, stating that the 'basics of admissibility in criminal trial have been utterly disregarded.'
"A reading of the evidence of witnesses and findings of the learned Special Judge, the basics of admissibility of evidence in criminal trial have been utterly disregarded and on the basis of inadmissible evidence, conclusions were drawn in the judgment."
Justice K. Surender has passed the said order in an appeal preferred by the convicted accused who are District Tribal Welfare Officers, alleged to have floated 8 bogus schools, forged and fabricated pre-matric scholarship bills in the names of those bogus schools, collected A.P.Government Cheques from the Deputy Pay Accounts Office and embezzled about Rs.3.78 crores and thereby cheated the Government.
The Bench noted that the investigation was triggered by a report filed by the Inspector of police special, WCO, Central Crime Station, Hyderabad.
The Court further noted that the Trial Court had convicted the accused based solely on the allegations urged by the Inspector of Police in the report filed by him, and on the ground of the evidence advanced by the Assistant Director in the office of Commissioner and Directorate of School Education in his letter.
The Inspector had alleged in his report that the accused from the years 1992-2000 swindeled government funds allocated for pre-matric scholarship and purchased several properties with the said money.
The Court took note of the fact that the DCP directed the Inspector of Police to investigate into the scam in 2002, and suspiciously the very next day a report was filed by the inspector.
Justice Surender noted that the Inspector had not bothered to back his allegations with documentary proof and no government records were cross checked for verifications.
"With the said amount, A1 and A2 purchased several properties and were also shared among the other accused. During cross-examination, PW1 (Inspector) admits that he has not made any specific enquiry nor mentioned names of the officials whom he met and on what date. No documents were obtained from any of the office nor can give names of the officials whom he met in Pay and Accounts Office and District Tribal Welfare Office (DTWO)."
The report submitted by the Inspector of police special, WCO, Central Crime Station, Hyderabad triggered the investigation.
Justice Surender also pointed out that the report submitted by the inspector was based on the information received by certain informants and interestingly, the Inspector knew the names of all bogus schools even before the investigation began. This, the Court said, throws a cloud of doubt on the case of the prosecution.
The Bench appreciated that the inspector admitted that there exists a register showing a list of all recognised and students eligible for scholarships. However it was not referred to before filing of the report, which the Court held, would attract negative inference as stipulated under section 114G of the Indian Evidence Act.
"Under Section 114-G of Indian Evidence Act, it may be presumed that evidence that could be produced and is not produced, if produced would be unfavorable to the person who withholds it. The Court may presume the existence of such fact. In the absence of any evidence apart from the inadmissible and uncorroborated contents of Exs.P2 and P179, it creates any amount of doubt on the prosecution case about the claim of the eight schools being non-existent. "
The Court also referred to the judgment of Kali Ram v. State of Himachal Pradesh to reiterate that a letter given to a police official cannot be admissible, just like a statement cannot.
The second piece of evidence relied upon by the prosecution was the letter addressed to the Assistant Commissioner by Dr.Man Mohan Singh, Commissioner and Director of School Education. According to the prosecution the letter confirmed that the said schools were bogus, pointing at the guilt of the accused.
Justice Surender disregarded the neglect on part of the investigation authority stating that a simple reading of the report filed by the Commissioner and Director of School Education would make it evident that at least 5 schools out of the alleged 8 were in existence.
"The said document goes contrary to the case of the prosecution that eight schools are bogus schools. In Ex.P179, it was informed regarding existence of five schools out of the alleged eight bogus schools."
Justice Surender also tried to understand whether there existed a nexus between the accused and the alleged cheques issued.
He noted that there is an established procedure to be followed for raising a bill for pre-matric scholarships. Firstly, there is a press release, secondly there is a committee formed under the chairmanship of the District Collector and the DTWO as a Convener, following which the applications are received and students are shortlisted.
Adding to that, after the students were selected the DTWO was to visit the schools and ensure that students were admitted as per scholarship, only after which funds would be released. The Cheques would be issued by the DTWO and Pay and Accounts ensured that all details on the cheque were correct, after which the DTWO would hand over the cheques to the principals for encashing.
At this juncture, the Court noted that communication regarding cheques would be solely between the Principals of the respective school, the DTWO and the Pay and Accounts Department. To make matters even more suspicious, the Court observed that the cheques were all signed by the DTWO who denied his signatures and the Investigation authority did not conduct any forensic evidence to confirm it. The Principals and Pay and Accounts also denied any handing over of the check.
The Court emphasized that none of the above mentioned authorities and not even the bank authorities to testify that it was the accused who handed over the cheques for enchantment.
"All the said cheques and bills were collected during the course of investigation. However, none of the cheques were sent to expert to ascertain whether A1 and A2 had either claimed the cheques or presented them or withdrew the amount from the bank account. "
The Court observed that every transaction is entered into a register and audited, but the investigation agency failed to assess any official documents.
"The Investigating Officer has failed to collect the Audit Treasury Manual, Budget Control Register, Form 44 Register, which would reflect the passing of bills."
While quashing the case against the accused, the Court noted that all public servants should be arrested only after a prior notice, that there was no nexus between the Tribal Workmen and the alleged scam and lastly that the prosecution had miserably failed to prove a case.
"There cannot be any moral conviction of accused. Unless the burden is discharged by the prosecution proving the case beyond reasonable doubt, no conviction can be recorded...The prosecution has left yawning gaps in investigation and failed to prove their case beyond reasonable doubt by adducing admissible evidence."
Criminal Appeal No.667 OF 2007 & batch
Counsel for petitioners: A. Prabhakar Rao, K. Suresh Reddy, T.Pradyumnakumar Reddy &
Sreenivasa Rao Ravulapati
Counsel for respondents: Public Prosecutor