IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 CRL.A.No. 1714 of 2003() ------------------------ (CC.25/1999 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE) .................... APPELLANT/ACCUSED: -------------------------------- P.K.KRISHNANKUTTY, S/O.KUNCHAN NAIR, 'KRISHNA NIVAS' THONDIKULAM, PALAKKAD. BY ADVS. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.SOJAN MICHEAL RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2011 ALONG WITH CRL.A. NO.1713 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL NOS. 1713 & 1714 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 21ST DAY OF FEBRUARY, 2011. COMNMON JUDGMENT The appellant, who is common in both these appeals, is the accused in C.C. Nos. 24 of 1999 and 25 of 1999 on the file of the Enquiry Commissioner and Special Judge, Kozhikode. By the common judgment impugned dated 27.9.2003 in the above two cases, the trial Judge found the appellant, who was working as a Head Accountant attached to the Office of the Divisional Forest Office, Palakkad, guilty for offences under Section 13 (1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') and Sections 409, 465, 471 and 477A IPC and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of two years each for offences under Sections 13 (1)(c) and 13(1)(d) read with Section 13(2) of the PC Act. For the offence under Section 409 IPC he was sentenced to undergo simple imprisonment for three years. For offences under Sections 465 and 471 IPC he was sentenced to simple imprisonment for one year each and for the offence under Section 477A IPC, he was sentenced to undergo simple imprisonment for two years. Assailing the above conviction and sentence, these appeals were preferred. CRL.A. 1713 & 1714/2003 2 2. The appellant was prosecuted by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad, for the above said offences with an allegation that the appellant was working as head Accountant at the office of the Divisional Forest Office, Palakkad for the period from 29.7.1989 to 22.6.1990 and as such, he was a public servant coming within the definition of Section 2(c) of the PC Act, 1988 and that abusing his position as a public servant during the above period he dishonestly and fraudulently made five false Surrender Leave Salary Bills in respect of certain staff members by forging the signatures of the Divisional Forest Officer, who was examined as PW. 15 and the Forest Range Officers at Mannarghat, Olavakkode and Ottappalam and using those forged documents as genuine, encashed a sum of Rs. 46, 451/- and had committed breach of trust and had undue pecuniary advantage. This is the allegation in C.C. 24 of 1999. 3. The allegation in C.C. 25 of 1999 is that during the period from 18.8.1990 to 26.11.1990, the appellant prepared false Surrender Leave Salary Bills and Employees Provident Fund Advance bills in respect of certain staff members and forged the signatures of PW15 and the Forest CRL.A. 1713 & 1714/2003 3 Range Officer, Walayar and using those forged Surrender Leave Salary bills and Provident Fund. Advance bills he encashed a sum of Rs. 19,967/- and committed breach of trust and had undue pecuniary advantage of that much amount. 4. PW. 19 was the Forester attached to the Forest Range Office, Mannarkkad. In November, 1990, he submitted an application for an advance of Rs. 12,999/- from the General Provident Fund and that application was allowed. A bill was prepared for the said amount and it was forwarded to the Divisional Forest Officer. But PW.19 didn't get the amount. PW.18 was the signatory in Ext.P31 bill prepared for the drawal of the GPF Advance. Since PW.19 did not receive the amount, he made a complaint to PW.15. PW.15 asked PW.1, the then manager attached to the office of PW.15 to conduct an enquiry. He conducted an enquiry and filed Ext.P1(a) Report. During the enquiry, it was revealed that the appellant had committed misappropriation by forgery and falsification. Following that, the matter was reported to the Vigilance and Anti Corruption Bureau, who conducted a preliminary enquiry. Having satisfied that there are materials to register a case and proceed with, PW.30, the then Deputy Superintendent of Police, Palakkad, registered a case as Crime No. 1 of 1991. CRL.A. 1713 & 1714/2003 4 Investigation was taken over by PW.33, another Deputy Superintendent of Police. PW.33 was succeeded by PW.31, who completed the investigation and after obtaining Exts.P63 and P64 sanction under Section 19 of the PC Act from PW.27, the Chief Conservator of Forests (Administration), filed final reports in the above two cases before the trial court. 5. The trial court took cognizance and issued process responding to which the appellant entered appearance. Copies of the relevant records were furnished to the appellant. After hearing the prosecution and the appellant, the learned Judge framed separate charges for the above said offences in both cases. When read over and explained the particulars of the offences, the appellant pleaded not guilty. Hence he was sent for trial. Invoking section 220 of the Code of Criminal Procedure, both cases were tried jointly. Evidence was recorded in C.C. 24 of 1999. On the side of the prosecution PWs 1 to 33 were examined, Exts.P1 to P77 were marked. During the course of cross examination of PW.1, Ext.D1 was marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 (1)(b) of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a defence of innocence and stated that he was victimized. However, he did not adduce any defence evidence CRL.A. 1713 & 1714/2003 5 despite the opportunity given to adduce evidence. The learned judge, on appraisal of the evidence on record, arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. Now these appeals. 6. The fact that the appellant was working as the Head Accountant attached to the Office of the Divisional Forest Officer, who was examined as PW.15, was proved by the testimony of PW.1, the then manager attached to the office of PW.15, PW.3 the successor of the appellant and by the evidence of PW.15. That fact was not at all challenged in cross examination. The learned counsel for the appellant fairly conceded that the appellant was working as the Head Accountant attached to the Office of PW.15 and in that capacity, he was a public servant coming within the definition of Section 2(c) of the PC Act, 1988. 7. In C.C. 24 of 1999, as I mentioned earlier, the amount alleged to have been misappropriated is Rs.46,451/-. The amount involved in the other case is Rs. 19,967/-. The evidence on record would show that the amount mentioned in C.C. 24 of 1999 is covered by five Surrender Leave Salary Bills which were marked as Exts. P32, P35, P33, P36 and P34. Ext.P30 and P31 are the bills in the other case. The evidence of PW.1 and CRL.A. 1713 & 1714/2003 6 PW15 would show that while making withdrawal towards establishment expenditure the bills should be prepared by the Range Officer concerned and it would be sent to PW.15 and on passing the bills by PW15, cheques would be issued by PW15 for the amount covered by the bills and would be sent to the concerned Forest Ranger. The Forest Ranger would encash the cheques from banks having transaction and the amount would be disbursed to the claimants. Ext.P26, P27, P28 and P29 are the cheques in respect of Exts. P32, P35, P36 and P33 bills. The cheque in relation to Ext.P34 bill was not produced. A perusal of Ext.P32 bill and P26 cheque would show that they relate to a sum of Rs. 7084/-, being the Leave Salary Surrender of PW.6, 9, 22 and two others. The amount due to PW.6 was Rs. 1,321/-, the amount due to PW.9 and PW.22 were Rs.1,365/- and Rs.1,624/- respectively. The remaining amount belonged to two other persons, who were not examined. Ext.P26 appears to have been signed by PW.15 and it was acknowledged by the concerned Forest Ranger who had endorsed the bills in favour of PW.21, the watchman who got it encahsed from the State Bank of India, Palakkad Branch on 30.7.1989. Ext. P13 is the cash book for the relevant period. Ext.P13(a) is a voucher regarding the payment of the said amount which would show that the expenditure was shown as paid to CRL.A. 1713 & 1714/2003 7 Forest Range Officer, Manarkad. Exts.P35 and P27 would show that a sum of Rs. 11,415/- was passed on Ext.P35 bill and Ext.P27 cheque was issued. The cheque was encashed from the State Bank of Travancoroe, Mannarkad Branch on 16.3.1990. The amount covered by the said cheque and bill would include the surrender leave salary of PW3, PW.4 and PW.5 and PW.24 and three others. The amount due to PW.3, PW.4, PW.5 and PW.24 are Rs. 1,316/-, Rs. 1,122/-, Rs. 1,497/- and Rs. 1,235/- respectively. The rest of the amount belongs to three other persons who were not examined. Ext.P14 (a) is the corresponding cash book entry which would show that expenditure was shown as paid to Forest Range Officer, Mannarkad. Exts.P28 cheque and P33 Bill would show that a sum of Rs. 7,879/- was claimed and drawn towards the leave surrender salary of PW6, PW.22 and three others. The amount due to PW.6 and PW.22 are Rs. 1,590/- and Rs. 1,784/- respectively. The rest of the amount belonged to three other persons who were not examined. Exts.P36 bill and P29 cheque would show that a sum of Rs. 11,904/- was claimed and drawn from the State Bank of India, Palakkad Branch on 22.6.1990 towards the leave surrender salary of five persons and the cheque was encashed through PW.21. Ext.P15 (a) is a voucher in the cash book which would show that the expenditure was CRL.A. 1713 & 1714/2003 8 drawn as paid to the Forest Range Officer, Ottappalam. Ext.P34 Bill would show that the said bill was signed by PW.23, the then Forest Range Officer, for a sum of Rs. 8,169/- towards surrender leave salary of PW.7, PW.8 and three others. The amount due to PWs 7 and 8 are Rs. 1,338/- and Rs.1,377/- respectively. The rest belong to some other persons. Exts.P31 bill and P31 (a) sanction order would show that towards withdrawal of a sum of Rs. 12,999/- as advance from the General Provident Fund Account of PW.19, the bill was signed by PW.18. It was passed for which Ext.P2 cheque was issued and encashed on 26.11.1990 through PW.21. The amount was seen spent as per Ext.P16(c) cash book entry to Forest Range Officer, Valayar. Exts. P37 bill and P30 cheque would show that a sum of Rs. 6,468/- was claimed towards surrender of leave salary of PW.25 and two others. It was got encashed on 21.8.1990 from the State Bank of India, Palakkad, through PW.10, a peon attached to the appellant. 8. PWs 6, 9 and 22 would depose that they did not make any claim for surrender of leave salary as claimed in Ext.P32 bill and they had not received any amount. PWs 3, 4, 5 and 24 had deposed that they had also not claimed any surrender of leave salary and they had not received any amount out of the amount claimed in Ext.:P35 bill. PWs 7 and 8 had also deposed CRL.A. 1713 & 1714/2003 9 that they had not claimed for surrender of any leave and they did not get any amount covered by Ext.P34 bill. PW.19 had deposed that he had not received the amount covered by Ext.P31 bill or Ext.P2 cheque towards the advance from the GPF. PW.25 had deposed that he had not applied for surrender of leave salary and had not obtained any amount out of Ext.P37 bill. 9. Ext.P4(a), P6(a), P7(a), P7(b), P8(a) & P9(a) are the counterfoils of Exts. P26, P27, P28, P29, P2 and P30 cheques respectively. The cheques and bills mentioned earlier would show that the bills were signed by the respective Forest Range Officers and the cheques were signed by the D.F.O. and forwarded to the concerned Forest Range Officers. Ext.P26, P29 and Ext.P2 were seen endorsed in favour of PW.21. PW.21 had deposed that he had encashed the amounts covered by those cheques as requested by the appellant and the amount was handed over to the appellant. Ext.P30 cheque was seen endorsed by the Range Officer in favour of Pw.10 who had deposed that at the request of the appellant Ext.P30 was encashed by him and the amount was handed over to the appellant. The evidence of PW10 and 21 would show that Exts.P2, 26, 29 and 30 cheques which would have been sent to the concerned Forest Range Officers were not sent. But the CRL.A. 1713 & 1714/2003 10 appellant got it encashed through PW10 and 21. The evidence of PW1 and PW.15 would show that all the cheques and bills were in the handwriting of the appellant. Though the bills and cheques would contain the signature of the concerned Forest Ranger and the Divisional Forest Officer, they had denied of signing the bills and cheques. Exts.P32, P34 and P35 were seen signed by PW23. PW.23 had denied the signature contained in those bills. Ext. P33 bill was seen signed by PW.20. PW.20 had denied the signature contained therein. Ext.P36 bill was seen signed by One P.Ramachandran who was cited as witness No.16 in the charge sheet. He is reported no more. PW17, the U.D. Clerk attached to the office of CW.16 had deposed that it was not signed by CW.16. Ext.P31 bill was seen signed by PW.18 who had admitted the same. PW.15 had admitted that Ext.P31 bill was passed by him. Ext.P37 bill was seen drawn as self by Pw.15. Pw.15 had denied the same. On the other hand, the handwritings in the bills and cheques, according to PW.1, PW.13 and PW.15, are that of the appellant. The evidence of PWs 1, 13 and 15 on that aspect was not at all challenged in cross examination. Adding to the above, the evidence of PW.32 coupled with that of Pw.33 would show that the specimen signature and handwritings of the appellant were taken by PW.33 and it was sent along CRL.A. 1713 & 1714/2003 11 with the disputed handwritings and signatures to the forensic science laboratory , Thiruvananthapuram. PW.32, the Assistant Director, examined the disputed writings in the cheques and bills and issued Ext.P70 report. PW. 32 would depose that the specimen signature and handwritings of PW.12, PW.15, PW.18, PW.20 and PW.23 along with the specimen handwriting and signature of CW.16 were compared with the disputed handwritings in the cheques and bills and found that those handwritings and signatures are not that of PWs.12, PW,15, PW.18, PW.20, PW.23 and CW.16. On the other hand, the disputed handwritings were found to be that of the appellant. The evidence of PW.32 corroborates with the testimony of PWs 1, 13 and 15 regarding the handwriting of the appellant in the disputed documents. Though PW.32 was subjected to searching cross examination, no material was disclosed to disbelieve him. The handwritings in the vouchers of the cash book Ext.P13(a), P13(b), P14(a), P15(a) and P16(c) were also examined by PW.32 and found to be that of the appellant. That was also not challenged in cross examination. By Ext.P13 (a), P13(b), P14 (a), P15(a) and P16(c) it is seen that the appellant had recorded expenditure by forwarding the amount covered by Ext.P32, P34, P35, P36 and P31 bills respectively. So, it is for the appellant to CRL.A. 1713 & 1714/2003 12 account the same. I had earlier mentioned that PWs 6, 9 and 22 had deposed that they had not received the amount covered by Ext.P32 bill. PWs 3, 4, 5 and 24 deposed that they had not received the amount covered by Ext.P35 bill. PWs 7 and 8 had deposed that they had not received any amount covered by Ext.P34 bill. Though the cheque relating to this bill couldn't be produced by the prosecution, Ext.13(a) cash book entry written by the appellant would show that the said bill was also encashed by the appellant and expenditure was recorded as if payment was made to Forest Range Officer, Mannarghat. Therefore, the failure to produce the said cheque is not significant. PW.19 had deposed that he had not received the advance from the GPF as covered by Ext.P31 bill. PW.20 had deposed that he had not received the amount covered by Ext.P37 bill. I had also mentioned that Ext.P26, P29 and P2 cheques were encashed through PW.21 and Ext.P30 cheque was encashed through PW.10. Ext.P27 cheque was seen encashed through PW.12, the peon. He had deposed that the signature contained over Ext.P27 under the writings "contents received" was not that of his and that he had not signed Ext.P27 and that he had also not received the amount covered by Ext.P27. The evidence of PW12 would show that even his signature was forged. So it is for the appellant to answer the same CRL.A. 1713 & 1714/2003 13 as the bills and cheques were drawn by him and the handwritings in the bills and cheques were that of his and that he had endorsed the expenditure in the cash book. In fact, the appellant had no good explanation. Therefore, it is legitimate to enter into an adverse inference. 10. The evidence of PWs 1, 13 and 15 would further show that the amount covered by the bills and cheques in disputes were seen remitted back to the treasury by Ext.P41 series treasury chalans. Of course the appellant had denied it and stated that somebody had deposited the same in his name. But the evidence of PWs 1, 13 and 15 would show that the handwritings in Ext.P41 series are that of the appellant. Their evidence on that aspect was not challenged in cross examination. Therefore, it is established that the appellant had remitted back the misappropriated amount. That circumstance is also against the appellant. 11. It is revealed by the testimony of PWs 1, 13 and 15 that the cheques should have been in the custody of the Divisional Forest Officer but as the DFO being a touring officer, the cheques were entrusted to the appellant. That evidence of PWs 1,13 and 15 on that aspect was also not challenged in cross examination. The evidence of PW1 would further show that since the bills were received from the Range office, it would be CRL.A. 1713 & 1714/2003 14 checked by him and then it would be entrusted to the appellant to issue the cheque and it is for the appellant to draw the cheque and get it signed by the DFO and then to send back to the Range officers. That evidence also remains unchallenged. So there is no possibility for having any person taking out the cheques and misusing the same without the knowledge of the appellant. 12. The evidence of PW.29, the manager of the bank, would show that Exts.P66, P67 and P68 are the photocopies of the Cashiers Payment Scroll, Govt. Debit Scroll and P.D. Register respectively and those documents would show that the amount covered by the cheques in dispute were encashed from the treasury. PW.26, the manager of the State Bank of Travancore also had deposed that Exts.P61 and P62 are the true extract of P.D. Register and Debit Scroll and it would show that the amounts covered by Ext.P31 and P35 bills were encashed. That evidence of Pw.26 and PW.27 also remains unimpeached. 13. By the evidence on record, the amounts involved in both cases were drawn from the bank through cheques drawn in the handwriting of the appellant. I had earlier mentioned that the writings over the cheques were proved to be in the handwriting of the appellant. It is the very case of the CRL.A. 1713 & 1714/2003 15 prosecution that the signatures of the payees were forged by the appellant. The respective payees had denied the signature. According to the learned counsel for the appellant, the prosecution had not established that the appellant was the author of the forged signature and so he is entitled to an acquittal. True that the prosecution could'nt prove it. Since the forgery was committed secretly there is no possibility for any direct evidence. By the evidence of the payees and experts it was established that the signatures over the cheques are not that of the payees. It is idle to search for the characteristics of the author in forged signatures. Then the only possibility is to find out the authorship by circumstances. The evidence of PW10 and 21 would show that of the six cheques, Ext.P2, P26, P29 and P30 were get encahsed by the appellant through PW21 and PW10 and the amounts thereon were entrusted to the appellant. With that evidence of PW10 and 21, it can be legitimately presumed that the appellant was the person who committed forgery. So also, since the cheques were drawn by the appellant consequent to the passing of the bills in dispute, it can be legitimately presumed that the bills also were forged by the appellant. The failure of the prosecution to prove the authenticity of the forged signatures is insignificant. Therefore, the argument on that event is devoid of merit. CRL.A. 1713 & 1714/2003 16 The evidence on record is inconsistent with the plea of innocence. Though the appellant has got a case of victimization the evidence on record reveal no any such victimization. There is'nt even any suggestion. As regards the endorsement relating to the passing of the bills, drawing of the cheques and endorsements over the cheques including acknowledgment of the contents are in the handwriting of the appellant. Appellant has no case that the above writings are in the handwriting of any one else. Hence, the story of victimization is also devoid of merit. 14. For the foregoing reasons, I concur with the finding of the trial judge that the cheques and bills mentioned earlier were forged by the appellant and got it encashed. Entries were made in the cash book by the appellant recording expenditure. The amounts covered by the bills were due to PWs 3,4, 5, 6, 7, 8, 9, 22, 24 and 25 and certain others. They had not at all received the amount. There is no entry in the acquittance rolls regarding the disbursement of the above amounts. Therefore, it is evident that the appellant had misappropriated the amount and had pecuniary advantage. But I fail to find that offence under Section 13(1)(c) read with Section 13 of the PC Act and Section 409 IPC was established as there is no entrustment of the above said amount to the appellant, who was a public servant or that CRL.A. 1713 & 1714/2003 17 there was misappropriation or breach of trust. Whereas offence under Section 13(1)(d) read with Section 13(2) of the PC act and under Section 465, 471 and 471A IPC are established. 15. The learned counsel for the appellant submitted that Ext.P63 and P64 sanction order is not valid as PW.27 who had issued the same had not applied his mind. According to the learned counsel, the name of PW.15 is shown as 'Gopinathan Nair' whereas PW.15 is 'Gopinathan' and the name of the Ranger is not mentioned in Ext.P63 and P64. However, I notice that the evidence of PW. 27 remains unimpeached. Adding to the above, in view of Section 19(3)(a) of the PC Act, even if there is any omission, error or irregularity in the order according sanction to prosecute, that is not at all a reason to reverse or alter