Bombay High Court
State, Through Cbi, Acb Goa vs Shivanand Fakirappa Bachagundi on 20 May, 2026
2026:BHC-GOA:1056 CRIA-32-2024
2026:BHC-GOA:1056
Niti
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.32 OF 2024
State
Through CBI, ACB, Goa,
Having office at Bambolim,
Tiswadi, Goa. ...Appellant
Versus
Shri Shivanand Fakirappa Bachagundi
H.No.503, Navachetna-A,
Sector-3, CGS Colony, Kane Nagar,
Antop Hill, Mumbai & Permanent
resident of S-3, Mukund Residency,
2nd, Above Canara Bank.
Mandopa Road, Shanti Nagar,
Margao, Salcete, Goa.
Native of C/o. M.B. Kempasanna,
Post : Karadi Gudda, Taluka Dharwad,
Dist.: Dharwad, Karnataka. ... Respondent
Mr Pravin Faldessai, Special Public Prosecutor for the Appellant.
Ms Pushpinder Kaur, Advocate for the Respondent.
CORAM : ASHISH S. CHAVAN, J.
Reserved on : 1st APRIL 2026
Pronounced on : 20th MAY 2026
JUDGMENT :
1. By way of this Appeal, the Central Bureau of Investigation, Anti-
Corruption Branch (hereinafter referred to as CBI-ACB), the Appellant
herein has assailed the judgment and order dated 16.03.2021 passed by District
& Sessions Judge, South Goa, Margao, in Special Corruption Case No.1 of
2017, inter alia, acquitting the Accused (hereinafter referred to as the
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Respondent) of the offences punishable under Section 409, 420, 471 of IPC
along with Section 13(2) r/w 13(1)(d) of PC Act, 1988.
2. The chronology of events leading to the judgment under challenge can
be summarised as under:
(i) The Respondent was working as Assistant Director of Micro Small
and Medium Enterprises – Development Institute, Margao, Goa
(hereinafter referred to as MSME-DI) since the year 1997. In June
2011, one Mr P.V. Velayudhan was posted as Director, MSME-DI.
He was examined as PW34. The Respondent was also the Drawing
and Disbursing Officer (DDO).
(ii) In the month of February 2013, the National Vendor Development
Programme 2012-13 (NVDP) was organised in collaboration with
DITC, SIDVI and Goa Shipyard Limited and was held on 15th and
16th February 2013. Funds to the extent of Rs.4,50,000/- (Rupees
Four Lakhs Fifty Thousand only) was allotted by the DC (MSME),
New Delhi vide letter dated 31.07.2012. By an order dated
05.12.2012 issued by PW34, he gave sanction for the withdrawal of
advance of Rs.2,25,000/- (Rupees Two Lakhs Twenty Five
Thousand only) out of the sanctioned amount of Rs.4,50,000/-
(Rupees Four Lakhs Fifty Thousand only) for the expenditure to be
incurred to organise the said NVDP and appointed the Respondent
as the Coordinating Officer of the programme.
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(iii) Accordingly, the said sum of Rs.2,25,000/- (Rupees Two Lakhs
Twenty Five Thousand only) was deposited in the personal account
of the Respondent. The Respondent submitted a bill dated
22.03.2013 along with particulars of expenditure and the
accompanying bills to the Accounts Office of MSME-DI, Mumbai.
(iv) On 08.07.2014, on the basis of an oral source information, an FIR was
registered against the Respondent by Additional SP for suspected
offences of criminal conspiracy, criminal breach of trust by public
servant, cheating and dishonestly inducing delivery of property,
forgery for the purpose of cheating, using forged documents as
genuine and criminal misconduct by public servant punishable
under Sections 409, 420, 471 of IPC along with Section 13(2) r/w
13(1)(d) of PC Act, 1988.
(v) The Investigating Officer (PW44), after conducting investigation
sought sanction to prosecute the Respondent and filed the
chargesheet for offences as enumerated hereinabove. The sum and
substance of the chargesheet was that the Respondent was solely
responsible for the expenditure of sanctioned amount of
Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand only) and using
twelve forged bills/vouchers, some of which were used for services
and heads not used or purchased for falsely claiming an amount of
Rs.94,090/- (Rupees Ninety Four Thousand Ninety only) and
further claiming a sum of Rs.3,92,811/- (Rupees Three Lakhs
Ninety Two Thousand Eight Hundred & Eleven only) as paid to
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one Thomson Enterprises when actually only Rs.3,48,934/- (Rupees
Three Lakhs Forty Eight Thousand Nine Hundred & Thirty Four
only) was paid.
(vi) The Respondent pleaded not guilty and claimed to be tried. The
prosecution examined 44 witnesses on behalf of the prosecution.
The Respondent has not examined either himself or any witnesses in
defence.
(vii) By way of the impugned judgment and order, the Respondent was
acquitted of the offences punishable under Sections 409, 420, 471 of
IPC along with Section 13(2) r/w 13(1)(d) of PC Act, 1988.
3. Aggrieved by the impugned judgment and order, the CBI-ACB
approached this Court by way of the present Appeal. This Court, vide order
dated 08.07.2024, admitted the Appeal, which is finally heard by consent with
the able assistance of the respective Counsels.
4. On behalf of the Appellant, learned Special Public Prosecutor, Mr
Faldessai, has assailed the order of acquittal on several grounds. He argued that
the finding of the learned Trial Court that the sanctioning order does not
disclose application of mind is erroneous. According to him, the learned Trial
Court ought to have considered the evidence of PW39, who has very clearly
deposed how the competent Authority had the jurisdiction and the
competence to grant sanction to prosecute the Respondent and that the
learned Trial Court ought not to have held that there was no sanction to
prosecute the Respondent only because the IO failed to comply with the
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circular of 2015. He contended that the Trial Court ought to have considered
that complying with the aforesaid circular was not sine qua non but only to
assist the sanctioning Authority in arriving at an opinion.
5. The learned Special Public Prosecutor criticised the finding of the
learned Trial Court, which has exonerated the Respondent on the ground that
he was not solely responsible for the purchase/procurement of stores in view
of the fact that a committee was constituted by PW34 and the Respondent
was only a member of the said committee, by arguing that the Respondent was
not only the Assistant Director but also the DDO and hence he was
responsible for the purchase/procurement of stores.
6. The learned Special Public Prosecutor has assailed the finding of the
learned Trial Court that since the Lease Agreement of Balaji Stationers was
not produced, the prosecution had failed to prove that PW31 was the owner
of Balaji Stationers. According to the learned prosecutor, the Trial Court
ought to have considered that once the bill was produced and exhibited on
behalf of the prosecution, the burden shifts on the Respondent to show that
the bill was used by him for claiming and disbursement of money. Since the
Respondent failed to discharge this burden, the learned Trial Court ought to
have drawn adverse inference against the Respondent. PW40, who was shown
the bill no.537 has deposed that the signature on the bill is not his, which
clearly indicated that the Respondent had produced a fake and forged bill on
the basis of which he claimed the amount.
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7. The learned Special Public Prosecutor also assailed the finding of the
learned Trial Court in coming to the conclusion that it was doubtful as to
whether PW14 received payment against three bills and disbelieved the said
evidence, by arguing that only because PW14 did not remember whether he
had received the payment of the aforesaid bills, his entire evidence could not
be discarded.
8. The learned Special Public Prosecutor has criticised the finding of the
learned Trial Court, disbelieving the evidence on the point of fake bills
connected with the evidence of PW13, Proprietor of a stationery shop, on the
ground that the amounts under the bills were claimed by the Respondent,
which clearly shows that the Respondent made use of the fake documents
knowingly. He also finds fault with the observation of the learned Trial Court
that the inquiry report in pursuance to the departmental inquiry exonerated
the Respondent when, according to him, there was other clear evidence
against the Respondent on record and that the departmental inquiry had no
bearing on the investigation in the present case.
9. The learned Special Public Prosecutor has further argued that an
adverse inference ought to have been drawn by the learned Trial Court against
the Respondent insofar as the bills issued by PW18 were concerned, since
according to him, the Respondent has not discharged the burden of showing
as to how the payment was made to PW18 by him. He has also criticised the
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finding of the learned Trial Court, which disbelieved the seizure panchanama
conducted in the house of the Respondent, wherein some documents were
seized. He has also found fault with the observation of the learned Trial
Court, which disbelieved the opinion of the handwriting expert PW42, while
not considering the evidence in proper perspective and also ignoring the fact
that the case before the learned Trial Court was not based solely on the
opinion of the expert, but there was other independent corroborative material
to prove the guilt of the Respondent.
10. According to the learned Special Public Prosecutor, the learned Trial
Court has erred in holding that the sanction was issued by the competent
Authority only on the basis of the statement of PW1, who deposed that the
Development Commissioner MSME-DI was the controlling and appointing
Authority of the Respondent. According to him, the non-production of a
copy of the gazette Notification relating to the appointment of the Officer
signing the order to the office held by the Respondent at the time of the
sanction was not fatal to the prosecution. These were at the highest mere
irregularities in sanction to prosecute and the Respondent had not
demonstrated that non adherence of the aforesaid technicalities resulted in
failure of justice. Further, according to him, the learned Trial Court has
ignored the evidence of those witnesses, who have deposed about the blank
bills, which according to the prosecution were issued at the request of the
Respondent. The learned Special Public Prosecutor prayed for reversing the
order of acquittal.
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11. Per contra, on behalf of the Respondent, it was submitted that the
sanction was sought by the Appellant by suppressing the departmental inquiry
report from the sanctioning Authority in violation of CVC Guidelines and
o ser atio s o the Ho le Ape Court in the case of CBI V/s. Ashok
Kumar Agarwal1. It was further submitted that in view of the non-
compliance of circular no.08/05/2015 issued by CVC, which enumerates that
i stru tio s a d uideli es issued the Ho le Ape Court pertai i to
the material to be placed before the Sanctioning Authority prior to the grant
or rejection of sanction, the very foundation of the process of seeking and
obtaining the sanction from the competent Authority is vitiated. The
Counsel for the Respondent strenuously submitted that after going through
the evidence of the Sanctioning Authority, the sanction order nowhere
discloses which documents were perused by the Authority and on what basis
he satisfied himself for according the sanction. All the relevant materials were
not placed before the Sanctioning Authority. Arguing that application of
mind on the part of the Sanctioning Authority is imperative, the order
granting sanction must demonstrate application of mind of the Sanctioning
Authority, which is evidently missing in the present case.
12. Arguing that the prosecution has neither pleaded nor proved any loss
of funds of whatsoever nature, it was pointed out that the Respondent did not
have any financial powers. All the financial powers were vested in the
1
2014 AIR SC 827
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Director, MSME-DI. The procurement of stores was carried out in
accordance with the directions of the expenditure committee and was not the
sole prerogative of the Respondent. Merely because the Respondent was
DDO, he cannot be saddled with the acts of the expenditure committee.
Pointing out the difference, learned Counsel for the Respondent, highlighted
the fact that the Respondent was a member of the organising committee of
NVDP and he was also the programme coordinator, whereas the expenditure
committee was responsible for the expenditure incurred. The depositing of
the amount of Rs.2,25,000/- (Rupees Two Lakhs Twenty Five Thousand
only) in the personal account of the Respondent was not a unilateral act on
the part of the Respondent and that all the members of the expenditure
committee were jointly and severally responsible/accountable. Insofar as the
document at Exhibit 63 collectively, it was argued on behalf of the
Respondent that DDO has no power to sign unless approved by the
controlling officer. There were no irregularities insofar as Exhibit 63 is
concerned. All these facts have been corroborated by PW1. In fact, PW2,
PW11 and PW6 also corroborate the aforesaid facts.
13. The Respondent argued that insofar as the issue of fake and forged
bills was concerned, the learned Trial Court has correctly observed that the
evidence of the concerned witnesses reveals inherent and fundamental lacunae
which clearly establish that these witnesses are not reliable or creditworthy.
Insofar as the issue of forgery of certain bills is concerned, it was argued that
the specimen handwriting of the Respondent was never taken during the
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course of the investigation and, therefore, the opinion of the handwriting
expert had no bearing or evidentiary value.
14. Before appreciating the merits, it must be emphasised that the scope
and parameters of examining an appeal against acquittal are set out by the
Ho le Apex Court in various judgments, some of which are C. Antony v/s.
Raghavan Nair2, K. Prakashan v/s. P. K. Surendran3 and State of Goa
v/s. Sanjay Thakran4. The principles that can be culled out from the
aforesaid judgments are that while dealing with appeals against acquittal, the
Appellate Court must bear in mind that there is a presumption of innocence
in favour of the accused person and such presumption is strengthened by the
order of acquittal passed in his favour by the Trial Court. The accused person
is entitled to the benefit of reasonable doubt when it deals with the merit of
the appeal against acquittal. Unless the conclusions reached by the trial court
are palpably wrong or based on erroneous view of the law, or if such
conclusions, allowed to stand, are likely to result in grave injustice, the
appellate court should be reluctant to interfere with such conclusions. Merely
because the appellate court, on re-appreciation and re-evaluation of the
evidence, is inclined to take a different view, interference with the judgment
of acquittal is not justified if the view taken by the trial court is a possible view.
2
(2003) 1 SCC 1
3
(2008) 1 SCC 258
4
(2007) 3 SCC 755
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15. Examining the impugned judgment and order in the light of the
aforesaid principles, the learned Trial Court has after perusing the material on
record and considering the arguments advanced by the respective Counsels,
framed the following questions, which arose for its determination:
(i) Whether the accused falsely claimed an amount of
₹94,090/- by using 12 bills/vouchers for services or heads not
used or purchased?
(ii) Whether the a used lai ed a su o ₹ , , /- as paid
to Tho so E terprises he a tuall o l ₹ , , /- was
paid?
(iii) Whether it is proved that the accused had committed
offences under Section 409, 420, 471 IPC and Sections 13(2) r/w
13(1)(d) of the Prevention of Corruption Act 1988?
(iv) Whether the sanction to prosecute the accused suffers from
any illegality?
16. Marshalling the evidence in order to answer the first question, the
learned Trial Court has observed that the Respondent was not solely
responsible for the purchase/procurement of stores/services in view of the
order dated 03.01.2013, issued by PW34. Referring to an office order dated
24.01.2013, issued by PW34, the Trial Court has observed that the
Respondent was allotted the work of printing activities of MSME-DI, visiting
large-scale units in Goa and conducting cultural events in coordination with
the event manager. Observing that there is absolutely no evidence indicating
the person/s who had collected or submitted any of the bills, which are alleged
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to be fake and fabricated, the learned Trial Court has further referred to the
cross-examination of PW31 and PW12, observing that their evidence does not
conclusively prove the forgery of the bills as alleged by the prosecution.
Co e ti o the ill os. a d issued Paradise Statio ers , it
a ot e o luded that these ills ere ot issued Paradise Statio ers .
Cross-examination of PW6 establishes that he has falsely deposed that he never
came across a firm a e Photozone . Similarly, dealing with the other
purported fake and forged bills and marshalling the evidence of the
corresponding witnesses, the learned Trial Court has come to the conclusion
that the prosecution has failed to prove that an amount of Rs.94,090/-
(Rupees Ninety Four Thousand Ninety only) were claimed by the
Respondent by using 12 bills/vouchers for services neither used nor
purchased. Referring to the departmental inquiry report, the learned Trial
Court has observed that the Inquiry Officer/PW1, who had conducted the
departmental inquiry, which records that the procurement of goods and
services were made as per procedure and there was no truth in the allegations
made in the FIR. Thus, the learned Trial Court has answered the first
question referred to hereinabove in the negative.
17. Examining the evidence pertaining to the second question framed for
determination by the learned Trial Court, it has referred to the evidence of
PW18 and observed that the amount of Rs.1,68,877/- (Rupees One Lakh
Sixty Eight Thousand Eight Hundred and Seventy Seven only) is paid to
Thomson Enterprises as can be seen from the contingent bill at Exhibit 63.
Therefore, the learned Trial Court has disbelieved the allegation that although
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an amount of Rs.3,92,811/- (Rupees Three Lakhs Ninety Two Thousand
Eight Hundred and Eleven only) was claimed, only a sum of Rs.3,48,934/-
(Rupees Three Lakhs Forty Eight Thousand Nine Hundred and Thirty Four
only) was paid to Thomson Enterprises. Hence, the learned Trial Court has
answered the second question framed for determination in the negative.
18. Dealing with the evidence in order to examine whether the Accused
had committed offences as alleged, the learned Trial Court, after taking a
conspectus of the entire evidence, makes several observations. Firstly, that the
letter dated 31.07.2012 proves the allocation and sanction of the funds by the
competent Authority. This fact is corroborated by the Investigating Officer
examined as PW44. PW11 has deposed that all the bills pertaining to the
expenditure of NVDP programme were first placed before the Director for
approval and after his approval the said bills went to the course coordinator
and that no bills could be passed for payments without a prior approval of the
Director. PW4 has deposed that the Respondent had submitted the bills with
the approval of the Director. At the time of putting the signature on the bills,
the Respondent would not be in a position to note who had submitted the
bills. PW1 has deposed that the Director, MSME-DI, was closely supervising
the conduct of the event and that other officers were assisting him. Every
action of the Respondent in respect of the NVDP was in terms of the
directions of PW34 (Director) and all the signatures on the document were
put by the Respondent while working under such directions. PW1 further
admits that the Respondent as DDO has no powers to sign the bills unless they
are approved by the Controlling Officer. In view of the aforesaid
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observations, the learned Trial Court observed that the prosecution has failed
to prove either that the Respondent was entrusted with the funds or that he
had dishonestly converted the funds for his own use and held that Section 409
IPC cannot be applied to the facts of the case. The learned Trial Court further
observed that taking a conspectus of the evidence of PW42, PW44, the
specimen handwritings of the Respondent and other evidence, there is no
evidence to suggest that the documents were forged by the Respondent.
There is also no material to indicate that the Respondent had any knowledge
that any of the bills were forged.
19. The learned Trial Court has while dealing with the allegations of
cheating qua the Respondent, has observed that the ingredients of Section 415
of IPC, which defines the offence of cheating, are not attracted. The learned
Trial Court has also observed that there is absolutely no evidence which proves
any wrongdoing on the part of the Respondent insofar as the offence of
criminal misconduct under Section 13(1)(d) of the PC Act, especially when
considered in the backdrop of the inquiry report. Considering that the
inquiry was precisely in respect of the allegations made in the FIR and
considering that the nature of proof in a criminal matter is much higher than
that required in a preliminary inquiry. In view thereof, he observes that the
findings in the said report assume significance. Pointing to several
investigation lapses, the learned Trial Court has observed that the presence of
the independent witnesses at the time of search was doubtful. He further
observes that even if it assumed that the said documents were found at the
residence of the Respondent, it is not the case of the prosecution that the
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Respondent had used any of the documents allegedly found in his residence
for claiming any amount towards NVDP 2012-13 and hence even assuming
that the documents were found at his residence, it does not prove any of the
charges against the Respondent. In view thereof, the learned Trial Court
concludes that the prosecution has failed to prove that the Respondent has
committed offences punishable under Section 409, 420, 471 of IPC and
Section 13(2) r/w 13(1)(d) of PC Act, 1988.
20. In answer to the last question framed by the learned Trial Court as to
whether the sanction to prosecute the Respondent suffers from any illegality,
the learned Trial Court has after reproducing Section 19(1)(c) of PC Act,
1988, has observed that PW39 has produced the sanction order to prosecute
the Respondent for offences punishable under Sections 409, 420, 471 of IPC
and Section 13(2) r/w 13(1)(d) of PC Act, 1988. During the evidence, PW39
denied that he was the Secretary of the Department of Economic Affairs. He
deposed that the Respondent joined the service of the Indian Economic
Service (IES), which is under the administrative control of the Department of
Economic Affairs, Ministry of Finance and, as such, he was under the
administrative control of the Ministry of Finance. He also deposed that he
had not looked into the matter of removal of the Respondent but only looked
into the aspect of sanction to prosecute him. PW44 (IO) has admitted that
the letters for obtaining sanction were addressed by the Head of Branch, i.e.
V. Ashok Kumar, to the MSME, New Delhi and he did not verify as to how
the sanction was granted by the Department of Economic Affairs. PW44
further confirmed that the letter seeking sanction to prosecute the
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Respondent was addressed to MSME, New Delhi and the sanction to
prosecute was sought from the Development Commissioner, MSME, New
Delhi. PW1, the Inquiry Officer, has given evidence that the Additional
Secretary and the Development Commissioner, MSME-DI, was the
controlling and appointing Authority of the Respondent. Since the offence
was allegedly committed in February 2013, when the Respondent was under
the administrative control of the Development Commissioner, MSME, it is
impossible that the Department of Economic Affairs was aware of the nature
of the work carried out at MSME-DI. In the light of the evidence discussed
hereinabove, the learned Trial Court has come to the conclusion that the
sanction was not issued by the competent Authority.
21. The learned Trial Court has referred to the circular dated 25.05.2015,
issued the CVC a ter re erri to the jud e t o the Ho le Supreme
Court in the case of Ashok Kumar Agarwal (supra), which has directed all
administrative Authorities to follow the guidelines of the aforesaid circular.
The Ho le Supre e Court i the atter o CBI V/s. Ashok Kumar
Agarwal (supra) has directed that the prosecution must send the entire
relevant record to the sanctioning Authority, including the FIR, disclosure
statements, statements of witnesses, recovery memos and all other relevant
material. Adverting to the evidence of PW44, the learned Trial Court observes
that PW44 did not send documents at Serial no.1 of Exhibit 67 (Inquiry
Report) as he did not find it necessary. He deposed that he had read the
document before filing the chargesheet and that the said document pertained
to the departmental inquiry against the Respondent regarding the allegations
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made in respect of NVDP 2012-13. Thus, it is evident that the preliminary
inquiry report, which dealt with the charges alleged in the FIR against the
Respondent and which exonerated the Respondent, was not sent to the
sanctioning Authority inspite of the fact that it was forwarded by the Inquiry
Officer to the Investigating Officer of CBI. Referring to various case laws and
Chapter VII of CBI Manual, the learned Trial Court holds that the
prosecution had failed to prove that the sanction accorded to the Respondent
suffers from no illegality. In fact, the learned Trial Court has held that the
sanction to prosecute the Respondent is erroneous and illegal.
22. It is upon a conspectus of the aforesaid answers marshalled by the
Trial Court in response to the questions framed for determination that the
Trial Court has ultimately acquitted the Respondent.
23.
24.
25. The
ASHISH S. CHAVAN, J.
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