CRL RC/10/2022 of SUBRAMANIAM Vs THE STATE REP BY on 16 October 2026

O R D E R

This Criminal Revision Case has been filed by the second accused, who was a Special Sub-Inspector of Police, attached to the Veeranam Police Station, Salem City. He challenges the Judgment of learned Principal Sessions Judge, Salem, dated 08.03.2021 in Crl.A.No.217 of 2019, which dismissed the appeal and confirmed the conviction and sentence imposed by the learned Judicial Magistrate No.IV, Salem, on 25.09.2019 in C.C.No.105 of 2015.

2. The petitioner tried along with one Govindan (A1), also a Special Sub-Inspector. A1 died during trial and proceedings against him abated. The petitioner charged under Sections 167, 403, 409, 418, 420 and 379 IPC. The trial Court acquitted him under Sections 167 and 409 IPC but convicted and sentenced him as follows: S.NO OFFENCE UNDER SECTION SENTENCE

403 IPC Simple imprisonment for one year

418 IPC Simple imprisonment for two years

379 IPC Simple imprisonment for two years

Section 420 IPC Simple imprisonment for three years and fine of Rs.1,000/-, in default simple imprisonment for three months

3. The facts of the case is that on 24.03.2014, at about 21.30 hours, Tr.Manivannan, Block Development Officer, Ayothiyapattinam, who was also the Flying Squad Officer appointed for the Election, lodged a complaint (Ex.P1) before the Veeranam Police Station. Elections were then in progress and the Model Code was in force.

4. The complaint, as narrated in the prosecution case, is that one Kuppusamy (P.W.2) and Balakrishnan (P.W.13) travelling from Salem towards Kuppanur in an Omni van bearing Registration No.TN-32-U-9042. They carried two bags of cash, the wages for wood-cutting workers. The petitioner and A1 received information, intercepted the van at the Kuppanur Old Check Post, and inspected it. They brought the van, cash bags and the witnesses to the Veeranam Police Station at about 16.00 hours. They informed the Block Development Officer and the Flying Squad Officer.

5. The prosecution alleged that two accused seized a larger sum from P.W.2 but handed over only one bag containing Rs.26,75,000/- to the Block Development Officer. The balance of Rs.6,00,000/- not produced and misappropriated by them. The cash handed over taken to the Collectorate and thereafter to the Income Tax Department. On the complaint, a case was registered in Crime No.130 of 2014 under Sections 420 and 379 IPC. It was later altered to Sections 167, 403, 409, 418, 420 and 379 IPC. The accused arrested on 25.03.2014 at about 1.00 a.m. and confession statements recorded. During investigation, cash recovered from the Veeranam Police Station. After investigation, final report filed before the learned Judicial Magistrate No.IV, Salem.

6. During trial, on the side of prosecution P.W.1 to P.W.107 examined, marked Exs.P1 to P31 and M.O.1 and M.O.2. No witness examined and no document marked on the side of the defence.

7. The trial Court, on conclusion of trial, found the Petitioner / Accused guilty and sentenced him as stated above. The sentences were ordered to run concurrently.

8. Aggrieved over the same, the petitioner preferred an appeal before the learned Principal Sessions Judge, Salem in C.A.No.217 of 2019. The Sessions Judge, by Judgment, dated 08.03.2021 dismissed the appeal, confirming the conviction and sentence of the trial Court. Against which the present Revision.

9. Mr.V.Parthiban, learned counsel for the petitioner, submitted that prosecution not proved the sum allegedly entrusted to P.W.2. The owner of the money, Aajee, never examined. No account books seized. P.W.2 and P.W.13 not counted the cash. P.W.1 deposed one coloured bag handed over to him, whereas P.W.2 deposed a bag of a different colour handed over. P.W.2 and P.W.13 never stated that the petitioner induced them to deliver any property. The ingredients of

Sections 418 and 420 IPC are therefore absent, and no dishonest intention at the inception is alleged or proved. There is no evidence of theft, and no proof that any property was converted by the petitioner to his own use. The recovery is not proved. P.W.90 and P.W.91 not supportrd the mahazars but admitted their signatures alone. P.W.92 and P.W.93 not supported the confession. Hence, recovery not proved. The seizure mahazars (Exs.P20, 24, 26 and 27) and alleged admitted portion of confession (Exs.P23 and P25) marked through the Investigating Officer. In any case, a confession made to the police is inadmissible, and the money recovered from the police station, not from the exclusive possession of the petitioner.

10. Adding further, the learned counsel submitted that the Courts below relied on the Section 161 Cr.P.C. statements of P.W.90 and P.W.91, which is impermissible. No test identification parade conducted, the third police personnel mentioned by P.W.2 not proceeded against, and no overt act is attributed to the petitioner except that he was one of the police personnel present. The cash bag locked and kept in the custody of station-in-charge / Sub-Inspector. The appellate Court dismissed the appeal mechanically, without meeting the grounds raised. No previous sanction under Section 197 Cr.P.C. was obtained. Hence, the learned counsel prayed for allowing the Revision.

11. Mr.S.Udayakumar, learned Government Advocate (crl.side) for the respondent opposed the revision. He relied on the counter filed by the Inspector of Police, Veeranam Police Station, and submitted that the prosecution examined 107 witnesses and proved its case beyond reasonable doubt. Two Courts below concurrently found the petitioner guilty. This Court, in revisional jurisdiction, should not re-appreciate the evidence. The revision deserves dismissal.

12. This Court is conscious that, in exercise of its power under Sections 397 and 401 Cr.P.C., it does not sit as a second Court of appeal and ordinarily does not re-appreciate evidence on which two Courts have concurred. The jurisdiction is nevertheless wide enough to correct a patent illegality, a perversity, a failure to consider material evidence, or reliance on inadmissible evidence, where there is a miscarriage of justice. State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452. The question is whether the present case falls within this limited area.

13. The points that arise for consideration are:

(i) Whether the prosecution has proved the quantum of money allegedly seized, and a shortage in the sum handed over?

(ii) Whether the recovery and the confession statement relied upon by the Courts below are legally admissible and proved?

(iii) Whether the ingredients of Sections 379, 403, 418 and 420 IPC are made out against the petitioner?

(iv) Whether the appellate judgment suffers from illegality or perversity warranting interference?

14. The entire prosecution case rests on missing shortage amount. If the sum originally seized is not proved, there there is no proof of any missing or shortage, and the allegation of theft, misappropriation or cheating cannot stand. The materials show that the total sum never established.

15. On perusal of the complaint and counter it is seen that prosecution material gives different figures for the sum seized and the shortage. P.W.2 and P.W.6 speak of Rs.35,00,000/-; as per charge sheet and the charge is that Rs.32,75,000/- seized; P.W.102 deposed that accused counted cash in his presence and informed that total was Rs.31,75,000/-; Only Rs.26,75,000/- handed over to P.W.1; shortage varies Rs.6,00,000/-, Rs.8,00,000/- (P.W.99) and Rs.8,25,000/-.

16. The figure of Rs.35,00,000/- rests is bared entirely on the statement that one Aajee who gave sum to P.W.2 and he is the only person who could confirm what amounded handed over, but not cited or examined as witness. No account book, voucher or wage register produced. The admission of P.W.2, confirm he does not know what sum kept in the bags, and none of the witnesses counted the cash. P.W.3 to P.W.89 only repeat that P.W.2 received wages from the owner and kept the bags in the van. None of them speaks to the quantum, and most do not even claim to have seen the cash being counted. They are mere echoes of P.W.2.

17. On perusal of the Judgment of the trial Court, the trial Court held that non-examination of Aajee is not fatal because the quantum is an admitted fact and the dispute is only about the misappropriation. That is not so. The quantum was the very fact in dispute, and it was disputed throughout the trial. Where the charge itself is built on a difference between two figures, the larger figure must be proved by reliable evidence. Oral statements of persons who did not count the money, made after the alleged shortage surfaced, are not enough.

18. The Courts below failed to note a further doubt. P.W.1 says one coloured bag handed over to him, whereas P.W.2 says a bag of another colour taken to the Collectorate. The grounds of revision point out that, according to P.W.1, the recovered amount already found on a table in the Police Station before the complaint lodged. These are not trivial discrepancies, when the whole case is about two bags and the missing balance. They create genuine doubt, what was seized, what amount handed over and what amount recovered.

19. The petitioner arrested at 1.00 a.m. on 25.03.2014 and the confession statements recorded while he was in police custody, which is inadmissible by virtue of Sections 25 and 26 of the Indian Evidence Act, subject to the statutory exceptions recognised by law. The confession statements allegedly made by the accused while in police custody are inadmissible against him by virtue of Sections 25 and 26 of the Indian Evidence Act, 1872, subject to the statutory exceptions recognised by law. Section 27 constitutes a limited exception, permitting proof only so much of the information received from the accused in police custody as relates distinctly to the fact thereby discovered. The admissible portion is confined to the information that distinctly relates to the discovery and does not extend to the entire confessional statement or to an accompanying admission of guilt. In Pulukuri Kottaya v. King Emperor, AIR 1947 PC 67, the Privy Council authoritatively explained that the expression “fact discovered” encompasses the object found, the place from which it is produced, and the accused’s knowledge of that fact, where relevant. The prosecution cannot rely upon the inadmissible portions of a custodial statement merely because some part of it led to a discovery.

20. The Courts below did not apply this test. The recovery here not from the petitioner's person, house or any place under his exclusive control. According to the prosecution witnesses (P.W.95 to P.W.97 and P.W.101), the cash recovered from a room or the record room of the Veeranam Police Station, the very place where the petitioner served and which accessible to other police personnel. The cash not discovered at the instance of the petitioner as a hidden fact. As the grounds of revision point out, P.W.1 himself speaks of the recovered amount having been seen at the police station even before the complaint lodged. If so, the 'discovery' was already known to the authorities, and not from confession.

21. The evidence on the recovery is inconsistent. P.W.94 said to have deposed that Rs.6,00,000/- was recovered from a hidden place in the police station, while P.W.101 deposed recovery of Rs.2,00,000/- from the record room. No witness speaks of the cash being in the personal possession of the petitioner. These are conclusions without evidence.

22. Equally important, the witnesses to the mahazars did not support the prosecution. P.W.90 and P.W.91 admitted their signatures on Exs.P4 to P15 and did not speak to the contents. On perusal of the records it is seen that the Village Administrative Officer informed that he signed the papers at the instance of his superior and knew nothing about the recovery or the confession. P.W.92 and P.W.93, the attesters to the confession statement, did not support the prosecution. The seizure mahazars (Exs.P20, 24, 26 and 27) and the confession portions (Exs.P23 and P25) marked only through the Investigating Officer, P.W.105. The contents of a document cannot be proved merely by the investigating officer producing it without the scribe proving them.

23. The reasons given by the lower appellate Court for rejecting the objection to the confession are legally unsustainable. The Court observed that the accused did not complain to the Magistrate when produced and did not raise the point under Section 313 Cr.P.C. The bar under Sections 25 and 26 of the Evidence Act is absolute and does not depend on any complaint of coercion by the accused. Further, the accused did not complain against the Village Administrative Officers to higher authorities. This puts the burden on the accused to disprove the prosecution evidence, which is contrary to the basic rule that the prosecution must prove its case. The Courts below thus erred in treating an inadmissible confession and unproved mahazars as legal evidence.

24. Even on the evidence of P.W.98, the accused informed him to keep the seized cash safely in the police station, and he later handed the bag to the Sub-Inspector. This would suggest that the bag lay in the custody of the station-in-charge, and the petitioner's conduct in handing over the seized money to be kept in safe custody is inconsistent with an intention to appropriate it. The prosecution did not establish that the petitioner alone access to the place from where the cash recovered.

25. Theft requires dishonest taking of movable property out of the possession of a person, without his consent. The prosecution case is that the cash seized by the accused in the discharge of their duty at the check post and brought to the police station, with the persons from whom it seized and handed over to P.W.1. The petitioner not shown to have removed any identified sum from the possession of P.W.2 or P.W.13 dishonestly. At the police station, the money in the custody of the police and not in the possession of P.W.2 or P.W.13. No overt act of dishonest removal by the petitioner is proved. P.W.2's evidence against him is only that he one of the police personnel who inspected the van. The prosecution failed to prove the ingredients of Section 379 IPC.

26. The offence of Section 403 IPC., requires that the accused dishonestly misappropriates or converts to his own use THE movable property. The prosecution must therefore prove that the property existed, quantity alleged in the hands of the accused and he converted it. As held above, the quantum and the alleged shortage are not proved, and the recovery evidence is not reliable. The finding of the lower appellate that accused 'took part of the amount before handing it over to P.W.1' and kept it in the police station, is a surmise and rests on no legally admissible evidence. The petitioner in any event not seen to have taken any sum. The alleged misappropriation of Rs.6,00,000/- held by the trial Court not to constitute an offence under Section 409 IPC, and the State has not challenged that acquittal.

27. As far as Sections 418 and 420 IPC., are concern, cheating requires deception of a person, dishonestly inducing him to deliver property. The dishonest intention must exist at the very inception of the transaction. The cash seized by the police under the Election Code of Conduct, not delivered by the witnesses on the basis of any deception. The allegation that the accused promised to return Rs.6,00,000/- after examination at the station is not spoken to by P.W.2 or P.W.13. There is no evidence of deception or of dishonest intention at inception. These offences cannot stand.

28. It must also be noted that the prosecution case, and the conviction, rest on mutually inconsistent premises. Theft is the taking of property without consent, while cheating is the obtaining of delivery with consent induced by deception. The same set of facts cannot constitute both, and the Courts below not even attempt to say which of the two allegedly happened.

29. The learned Principal Sessions Judge did not independently re-appreciate the evidence in the manner expected of a first appellate Court. It extracted the arguments of both sides, recorded the conclusion in broad terms, and concluded that 'some minor discrepancies' not fatal. The observation of the lower appellate Court that it was the bounden duty of a government employee to implement the election norms and the appellant, being a police officer, did not do so, is a moral observation and not a finding on the ingredients of the offences. The grounds of appeal raising the quantum, lack of overt act, absence of owner and identification of police persons not dealt with in any reasoned manner. The trial Court's approach shows a similar tendency to presume the shortage proved because the cash handed over was less than the sum alleged by the prosecution witnesses.

30. Where the prosecution evidence discloses several irreconcilable versions on the foundational fact, relies on an inadmissible confession, on mahazars not proved by their attesters, and on Section 161 Cr.P.C. statements, and yet two Courts convict, the finding is perverse and a miscarriage of justice results. The matter is within the limited area in which this Court exercises its revisional power.

31. As regards the plea that no previous sanction under Section 197 Cr.P.C. obtained, the lower appellate Court merely stated that prior permission is 'not mandatory', without reasons. In view of the findings above on the merits, this Court does not consider it necessary to decide this question and leaves it open.

32. The prosecution not proved the sum allegedly seized and alleged shortage, any dishonest taking, conversion or deception by the petitioner, or any legally admissible recovery or confession connecting him with the offences. At best there are suspicions and moral reproach. However, a grave suspicion cannot be constituted and taken as proved and cannot take the place of proof beyond reasonable doubt. The petitioner is entitled to the benefit of doubt, and the conviction and sentence recorded by the Courts below cannot be sustained.

33. In the result, this Criminal Revision Case is allowed. The judgment dated 08.03.2021 passed by the learned Principal Sessions Judge, Salem, in Crl.A.No.217 of 2019, confirming the judgment dated 25.09.2019 passed by the learned Judicial Magistrate No.IV, Salem, in C.C.No.105 of 2015, is set aside. The petitioner/second accused is acquitted of the charges under Sections 403, 418, 379 and 420 IPC. The bail bond, if any, executed by the petitioner shall stand cancelled, and the fine amount, if paid, shall be refunded to him. 16.10.2026 Index : Yes/No Speaking/Non-speaking order mpk To

1. Principal Sessions Judge, Salem,

2. Judicial Magistrate No.IV, Salem

3. The Inspector of Police, Veeranam Police Station, Salem District

3. The Public Posecutor, High Court, Madras.

M.NIRMAL KUMAR, J. mpk Pre-Delivery Order made in CRL.RC.No.10 of 2022 16.10.2026