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TMI Blog1989 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... was put in charge of 9 diesel pump. The appellant was in charge of the diesel pump from 6-2-1980 to 4-2-1982. Formerly this diesel pump was being operated by a private concern named Tharapur Company. The diesel pump and other accessories were received by the Cochin Shipyard under Ext. P43 receipt dated 6-2-1980. According to the practice in vogue Shipyard used to receive diesel from the Indian Oil Company. Pursuant to the indent for supply of diesel the Indian Oil Company will supply the required quantities. Diesel is supplied in tanker lorries and it is discharged into the underground tank. Stock in the tank is verified before supply and after diesel is filled, again the stock in the tank is cheeked. The Storekeeper acknowledges the receipt of the diesel and 'goods receipt voucher is prepared by the Purchase and Stores Officer. During the tenure of office of the accused as Storekeeper 38,000 litres of diesel was supplied to the diesel pump by Indian Oil Company, vide Exts. P3 to P6 invoices. The diesel stored in the lank of the diesel pump is used for the various vehicles belonging to the Shipyard. The various departments-in the Shipyard will prepare 5 copies of the stores ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieved the defence contention and found the appellant guilty and convicted him as aforesaid. 4. On the side of the prosecution several witnesses were examined to prove that there was entrustment of diesel with the appellant. The appellant was put in charge of the diesel pump on 6-2-1980. Ext. P28 is an office order issued by the Deputy Manager to the appellant. The appellant would contend that he had not received the copy of Ext. P28 and the main contention of the appellant is that he was never put in exclusive charge of the diesel pump. Online other hand, the case of the prosecution is that ever since the management of the diesel pump was handed over to the Cochin Shipyard from Tarapur Company, the appellant had been in charge of the same. Ext. D23 is a receipt issued by the Purchase and Stores Officer indicating that the diesel pump installation including the various articles such as brass, dip rod, fire buckets, measuring can, funnel etc. were received by the Purchase and Stores Officer of the Cochin Shipyard from M/s. Tarapur Company. The contention of the appellant is that it was the Purchase and Stores Officer who got the custody of these articles and the appellant was never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alteration made in the receipt. Except in Ext. P 12, in all other. Section 1. Vs. the figure has been corrected by adding one zero on the right hand side. Ext. P 12 indent was for the supply of 10 liters of diesel. There is no correction in the entries in Ext. P 12, but in Ext. P 16(1) the relevant entry in the ledger would show that the appellant had supplied 100 litres of diesel as against the indented quantity of 10 liters. Exts. P 1, P 7, P 8 and P 10 to P 15 would show that altogether 190 liters of diesel was indented. However, in Ext. P 16 ledger the total quantity supplied is shown as 1900 litres. The appellant admits while questioned under Section 313, Cr. P.C. that some corrections are found in the S.I.Vs, The appellant has no case that the S.I.Vs. were corrected after he despatched the same to the concerned Section 2. The explanation of the appellant is that it was the mazdoors who issued the required quantity of diesel and they would inform the matter to the storekeeper and the storekeeper will write down the quantity issued from the diesel pump set. This explanation is patently false. Ext. P 10 is an indent prepared by PW 17 who is an Assistant Executive Engineer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied by the Indian Oil Company. Exts. P 3 to P 6 are the four invoices regarding the supply of this 38000 litres. As per Ext. P6 on 29-5-1981, 9000 litres of diesel was supplied to the Shipyard. So also, as per Ext. P 3. 9000 litres and as per Exts. P 4 and P 5 invoices, 10000 litres each was supplied to the Shipyard. The supply of the diesel has been entered in Ext. P 16 ledger. The entries are seen to have been made by the appellant. In Ext. P 4 to P 6 invoices a receipt is seen to have been issued by the appellant. The appellant has signed in all these 4 invoices and it has been written in these invoices that the goods covered by the invoices were received from Indian Oil Corporation (Marketing Division) in good condition. The signatures of the appellant found in Exts. P 3 to P 6 were sent for comparison by the Handwriting Expert. PW 4, the Handwriting Expert, deposed that the signatures found in Exts. P 3 to P 6 are the signatures of the appellant. Therefore, it is proved that the 38000 litres of diesel was received in the diesel pump and the appellant had received the same in his capacity as the store-keeper in the Shipyard. So, it is satisfactorily proved by the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to have a physical verification by measuring the entire quantity of the diesel from the underground tank. By dip strike method the quantity was measured and the appellant issued Ext. P 27 hand-note. The learned Counsel for the appellant further contended that on subsequent verification huge quantity was found in excess. The appellant when questioned under Section 313, Cr. P.C. has staled that electronic data processing unit on 31-3-1982 showed a total quantity of diesel as 20,547.53d litres and this difference would show that there was huge quantity in excess. This contention cannot be accepted. The electronic data processing would show the figures only on the basis of the figures supplied to the computer. Evidently the figures supplied to the computer were mistaken. Therefore it showed the quantity of diesel very much in excess and it was more than the capacity of the underground diesel tank. Therefore, Ext. P 27 and other evidence would show that the stock was verified and at the time when the appellant relinquished his charge on 4-2-1982 there was only 1080 litres of diesel. If the contention of the appellant that the entries in the S.I.Vs. and the ledger were only clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plinary authority has to follow certain procedure in taking such proceedings and the procedure is to be followed in consultation with the Manager (Personnel). The power conferred on the Controller of Contracts and Stores is absolute and he can remove any 'workman' in his department. 10. The learned Counsel for the appellant has also raised a contention that the appellant was not a workman as defined in the Industrial Employment (Standing Orders) Act, 1946. It was contended that the work in the diesel oil pump was done by the mazdoors and the appellant was only doing a supervisory work. It is difficult to accept the contention that the appellant was a supervisor. In fact, the appellant was put in charge of the diesel oil pump. The various receipts and vouchers issued by the appellant himself would show that he was the authorised person to issue diesel and to receive the incoming diesel from the Indian Oil Corporation. The learned Counsel for the appellant further contended that as per Section 2(1) of the Industrial Employment (Standing Orders) Act 1946 a person employed in a managerial or administrative capacity or a supervisory staff drawing wages exceeding Rs. 1650/- p.m. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 220 is a new provision incorporated in the Code by Amendment of the Cr. P.C. in 1973. This Sub-section (2) of Section 220 was incorporated to resolve the controversy as to whether the joinder of three charges of criminal breach of trust or misappropriation with three charges of falsification of accounts connected with those offences was permissible, even when all the offences have been committed within the space of twelve months. Criminal breach of trust or misappropriation is often accompanied by falsification of accounts or analogous offences committed either to facilitate the breach of trust or to conceal its commission. The exclusion of such connected offences of falsification of accounts from the fiction created by Section 212(2) deprives this Section 2 of its usefulness in many cases. Therefore the amendment of Section 220 was necessitated. Now the person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) or in Sub-section (1) of Section 219, is accused of committing for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged against him or claims to be tried. Under Section 241 of the Code if the accused pleads guilty, the Magistrate Shall record the plea and shall convict, him thereof. If the accused refuses to plead or does not plead or claims to be tried, the Magistrate shall fix a date for the examination of the witnesses and after conclusion of the trial the accused shall be acquitted or convicted under Section 248 of he Code. It is true that there is no specific provision in the Code under Chapt. XIX to discharge the accused once the charges have been framed against him. In the instant cast the appellant has been discharged in C.C. 4/83 for the reason that there was no proper sanction issued by the competent authority and therefore the Special Judge had no authority to take cognizance of the offence. Therefore the entire proceedings were non est. 13. The question that would arise for consideration is whether the discharge of the accused in C.C. 4/83 could be construed as an acquittal and if it is an acquittal a second trial for the same offence is barred under Section 300, Cr. P.C. Article 20(2) of the Constitution also may come into play. Article 20(2) lays down that no person shall be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation of evidence at the conclusion of the trial. 14. In Mohammed Iqbal Aljimad v. State of A.P. 1979CriLJ633 it was held that any case instituted without proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. The learned special Judge discharged the accused for the reason that there was no proper sanction and that he had no jurisdiction to take cognizance of the offence and therefore the entire prosecution proceedings were void ab initio. Even though there is no specific provision in the Cr. P.C. the discharge of the accused was permissible, since the entire proceedings were void ab initio and the decision of the Supreme Court in Ratilal Bhanji's case fortifies this view. 15. The contention of the learned Counsel for the appellant that the second prosecution is illegal cannot be accepted for another a son also. The accused in this case as soon as he received summons from the Special Judge in C.C. 1 of 1984 challenged the proceedings by filing a criminal M. C. 265/84. This Court rejected the contention of the accused and the prayer for quashing the proceedings in C.C. 1 of 1984 was disallowed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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