IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 CRL.A.No. 849 of 2003(Y) ------------------------------ CC.29/2001 of ENQUIRY COMMISSIONER & SPECIAL COURT, THIRUVANANTHAPURAM .................... APPELLANT(S): 1ST ACCUSED ----------------------------------- K.N.DASAN, S/O.NARAYANAN, FORMERLY SHOP MANAGER, MAVELI STORE, EDAPPALLICOTTA, KOLLAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S):COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM (DEPUTY SUPERINTENDENT OF POLICE, VACB, KOLLAM UNIT). BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. A. NO. 849 OF 2003. = = = = = = = = = = = = = DATED THIS, THE 4TH DAY OF APRIL, 2011. J U D G M E N T The appellant is the first accused in C.C. 29 of 2001 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. By judgment dated 8.5.2003, the appellant was found guilty for offence under Section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "P.C. Act") and Section 409 IPC. Consequently, he was convicted and sentenced to rigorous imprisonment for two years each for the offences under Section 13(2) r/w Section 13(1) (c) of the P.C. Act and Section 409 IPC. For the offence under Section 13 (2) r/w section 13(1)(c), a fine of Rs. 20,000/- was also imposed. The substantive sentences were ordered to be run concurrently. Assailing the above conviction and sentence, this appeal was preferred. 2. PW.14, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kollam, in Crime No. 2/1999 filed the final report against the appellant and another, alleging offences under Section 13(2) r/w Section 13(1)(c) of the PC Act and Section 409 and 120-B I.P.C. The allegation against the appellant is that he was an employee in the Civil CRL. A. NO. 849/2003 2 Supplies Department. While so, the appellant was appointed as shop manager in Edappallikotta Maveli store by Ext.P18 order dated 26.11.1991 on deputation basis. The second accused was the helper under the appellant. On expiry of the period of deputation on 14.7.1995, PW.2, the Assistant Manager, Karunagappalli, under orders from the higher authorities, issued Ext. P1 order dated 14.7.1995, whereby PW.1 Ganesan Pillai was ordered to take charge from the appellant in the after noon of 14.7.1995. The appellant was directed to hand over charge to PW.1 and to report to the parent department. In obedience to Ext.P1 order, PW.1 reported for duty at the Maveli store at 3 p.m. on 14.7.1995 to take charge from the appellant. The working hours of the Maveli store in the afternoon was from 3.30 P.M. to 7.30 P.M. The appellant, though present in the forenoon, did not report for duty in the afternoon. PW.1, over phone, reported the matter to PW.2. PW.2 advised PW1 to wait till 8 P.M. But the appellant did not turn up. On the next day, ie. on 15.7.1995, PW.1 reported before PW.2. PW.2 along with PW.1 reached the Maveli store. Though PW.2 made attempts to contact the appellant over phone, he was not successful. Thereupon, the stock in trade in the Maveli store was verified in the presence of PW.1 and the second accused for which Ext.P2 mahazar was prepared. Ext.P2(a) is the list of the articles found in the CRL. A. NO. 849/2003 3 Maveli store at the time of inspection. On verification of the commodities, shortage of 537 Kgs. of boiled rice and 495 Kgs. of Palm oil was detected. Ext.P5 is the stock register. PW.1 was handed over charge. Thereafter, a further inspection was conducted by PW.3, the Junior Manager (inspection) and PW.8, the Assistant Manager (inspection). Exts.P9 and P10 are the reports of inspection. PW.3 conducted inspection regarding the commodities. PW.8 conducted inspection regarding the remittance of sale proceeds. By the inspection, it was revealed that there was failure to remit the daily collection on 28.1.1994, 29.12.1994, 30.12.1994 and 31.12.1994 amounting to Rs. 2,209.20, Rs. 2,239.90, Rs. 2,355.10 and Rs. 2562.95 respectively. The total shortage in the remittance was Rs. 9,367.15. But it was noticed that a sum of Rs. 2,062.40, being the sale collection of 20.12.1994 was remitted twice, one on 2.1.1995 and another on 22.7.1995 and if that amount is deducted, the short remittance would come to Rs. 7,304.75. As regards the commodities, the value of the shortage quantity from 4.10.1994 to 31.3.1995 was calculated at Rs. 11,299.65. The value of the commodities found shortage from 1.4.1995 to 14.7.1995 was quantified at Rs. 39,705.40. The total value of the commodities found short from 4.10.1994 to 14.7.1995 would come to Rs. 51,005.05. The matter was reported by PW.4, the Regional Manager through Ext.P17 report dated CRL. A. NO. 849/2003 4 10.11.95 to the Managing Director on the basis of which a complaint was lodged before the Vigilance and Ante Corruption Bureau. After a preliminary enquiry and having satisfied that there was criminal conspiracy , abuse of the office and misappropriation by the appellant and the second accused, by Ext.P24 First Information Report, the case was registered as Crime No. 2/1999 by PW.11, the then Deputy Superintendent of Police. The investigation was taken over by PW.14 who completed the investigation and submitted the charge sheet against the appellant and the second accused. 3. The trial court took cognizance and issued process, responding to which the appellant and the second accused entered appearance. After furnishing copies of the final report and connected documents, the prosecution and the accused were heard. On finding that there are materials to send the accused for trial, the charge for the above said offence was framed. When read and explained, the accused pleaded not guilty. Hence they were sent for trial. On the side of the prosecution, PWs 1 to 14 were examined and Exts. P1 to P33 were marked. After closing the evidence for the prosecution, the accused were questioned under Section 313 (1)(b) of the Code of Criminal Procedure. The appellant admitted his official status and contended that he handed over charge of the office to PW.1 and since CRL. A. NO. 849/2003 5 there was no platform balance, the commodities were not weighed and in the event there was any omission to remit the daily collections, the appellant was prepared to remit the same. In support of the defence plea, two witnesses were examined as DWs 1 and 2. The learned Special Judge, on appraisal of the evidence, arrived at a conclusion that the prosecution had succeeded to establish that the appellant had misappropriated commodities worth Rs. 51,005/- entrusted to the appellant for sale and short remittance of Rs. 7,305/- towards sales proceeds. Therefore offences u/s. 13(2) r/w 13 (1)(c) of the PC Act and Section 409 IPC were established. Consequently, the appellant was convicted and sentenced as above, assailing which this appeal was preferred. For offence under Section 120-B IPC, the appellant was acquitted. The second accused was acquitted on finding that the prosecution failed to establish any offence against the second accused. 4. I have heard Advocate Sri. Pirappancode V.S. Sudheer and Advocate Sri. B. Vinod, the learned Government Pleader. Perused the judgment as well as the evidence on record. The fact that the appellant was working as a shop manager in the Maveli store at Edappallikotta and as such he was a public servant coming within the definition of Section 2(c) of the PC Act is not disputed. Regarding the official status, there is the unimpeached testimony of PWs 1, 2, 3, 4, 8, 9 and 12. PW.9 was the CRL. A. NO. 849/2003 6 Managing Director of the Kerala State Civil Supplies Corporation. He had verified the final report and connected records and issued Ext.P22 order according sanction to prosecute the appellant. Regarding the validity of the sanction order also, there is no dispute. So the question now remains is whether there is failure on the part of the appellant to make remittance of sale proceeds on 26.12.1994, 28.12.1994, 29.12.1994, 30.12.1994, 31.12.1994 and 30.6.1995 amounting to Rs. 7, 305/- and there is shortage of commodities worth to Rs.51,005/-. 5. The very case of the appellant is that as per Ext.P1 order, the appellant was ordered to hand over charge to PW.1 in the afternoon of 14.7.1995 and to report before the parent department in the forenoon of 15.7.1995. Though the appellant waited for PW.1 he did not turn up. Hence the charge of the store including the key was handed over to the helper who is the second accused. The appellant was not given notice of inspection regarding the physical verification of the stock and he was not aware of the shortage of the commodities. Regarding the failure to remit the daily collection, if it is found anything due, the appellant was prepared to remit the same. 6. In the further statement given by the appellant, it is stated that PW.2 had on various occasions, taken money from the daily collections in CRL. A. NO. 849/2003 7 the Maveli store and that for the feast in connection with the wedding of the daughter of PW.2, various commodities were taken from the Maveli store and that PW.2 had not paid back the amount or remitted the value of the commodities so taken. In that defence there is admission regarding shortage of commodities and short remittance. But he accuses PW.2. Therefore, what is to be examined is whether there is merit in the accusation against PW.2. PW.2 had in unambiguous terms denied the allegations. Though it is stated that PW.2 had on various dates taken away the cash collections, neither any of the date nor the amount so taken is even mentioned. Regarding the commodities also, the allegation is very vague. It is not mentioned as to what commodities were taken by PW.2 or when and what quantity? PW.2 had deposed about the various records and the procedure to be maintained in the Maveli store. He had also deposed that on 14.7.1995, in the afternoon, the appellant did not report for duty and the matter was informed to him over phone by PW.1 and that on the next day, ie. on 15.7.1995 he went to the Maveli store along with PW.1 and found that in the afternoon of 14.7.1995 the appellant had not at all marked his attendance. Ext.P8 is the attendance register and Ext.P8(a) is the relevant portion of the attendance register for 14.7.1995 and 15.7.1995. PW.2 had recorded absence of the appellant in the relevant columns. PW.2 had also CRL. A. NO. 849/2003 8 deposed about the inspection that he conducted on 15.7.1995. It was also recorded in Ext.P8 attendance register that he had approved Ext.P2, the mahazar of the stocks and Ext.P2(a), the list of the commodities and its weight. Exts.P2 and P2(a) were signed by PW.1 and the second accused along with PW.2. He had further deposed that the shortage of the various commodities including 537 Kgs. of boiled rice and 495 kgms. of palm oil was noticed and that Ext.P5 is the stock register. He had further deposed that Ext.P11 series are the consignment notes through which the commodities were sent to the Maveli store. He had proved Ext.P3 collection and remittance register, Ext.P4 cash book, P6 daily stock cum sales register for the period from 1.12.1994 to 31.1.1995 and Ext. P7 copy of the register of daily stock-cum- sales return of the Edappallikotta Maveli store for the period from 8.6.1995 to 14.7.1995. The relevant entries regarding the sales on 28.12.1994, 29.12.1994, 30.12.1994, 31.12.1994, 24.12.1994 and 26.12.1994 are marked as Exts.P6(a) to P6(f) respectively. PWs 2 and 3 also had deposed that the cash book was left blank since 21.12.1994. Though it was suggested that the said allegation is a falsehood, Ext.P4 would belie the defence contention and support the evidence of PWs 2 and 3 that no cash book entry was made after 21.12.1994. That fact itself would sow that the appellant who was the shop manager was not properly CRL. A. NO. 849/2003 9 maintaining the accounts. 7. PW.3, the junior manager had deposed that he had conducted a detailed inspection from 17.7.1995 to 21.7.1995 and that Ext.P9 is the inspection report. He had deposed that the stocks were verified with reference to the stock register and Ext.P11 series consignment notes and that on close scrutiny, a shortage of 495 kgms. of palm oil and other items were noticed and that the value of the commodities found shortage in between 4.10.1994 to 31.3.1995 was Rs. 11,299.65 and that the value of the commodities found short for the period from 1.4.1995 to 14.7.1995 is Rs. 39,705.40. The total would come to Rs. 51,005.05. It was further deposed that there was failure to remit the sale proceeds on 13.7.1995 and 14.7.1995 amounting to Rs. 877.45 and 633.95 respectively. Though chalan was prepared as if the sale proceeds on 13.7.1995 and 14.7.1995 were Rs. 8767.45 and Rs. 643.90, the real sale proceeds on 13.7.1995 was Rs.3,964.45. It was also deposed that it was the duty of the appellant to maintain proper accounts and to remit the sale proceeds in the bank and that Ext.P3 collection and remittance register was maintained by the first appellant and there is no entry in Ext.P3 regarding the remittance of the sale proceeds from 28.12.1994 to 31.12.1994. It was further deposed that as per Ext.P3 maintained by the appellant, the sale proceeds of Rs. 3,264.40 CRL. A. NO. 849/2003 10 was remitted on 2.1.1995. Again it was remitted on 22.7.1995 as per Ext.P13 and that the sale proceeds on 26.7.1994 amounting to Rs.2,672.30 was remitted on 22.7.1995 as per Ext.P14. Ext.P14 was written and signed by the appellant and the remittance was made by the second accused. A sum of Rs. 2,368.35 being the sale proceeds of 30.6.1995 was remitted only on 22.7.1995 as per Ext.P15 chalan receipt which was written by the appellant and signed by the second accused. 8. The above evidence of PWs 2 and 3 remains unimpeached. The evidence of PWs 2 and 3 on that aspect was further corroborated by the testimony of PW.8, the Assistant Manager who inspected the shop on 27.7.1995 for which Ext.P10 report was prepared. The inspection by PW.8 was relating to the omission to make remittance of the sale proceeds on the dates mentioned earlier. He has also deposed that the cash book entries were completed only up to 20.12.1994 and thereafter the cash book is left blank and that the sale proceeds on 28.12.1994, 29.12.1994, 30.12.194 and 341.12.1994 were not at all remitted and that the sale proceeds on 24.12.1994 was remitted on 2.1.1995 and again on 22.7.1995. The short remittance wowuld come to Rs. 7,304.75. The evidence of PW.8 also remains unimpeached. The learned Special Judge had discussed the evidence meticulously. On a critical reappraisal, I find no good reason to CRL. A. NO. 849/2003 11 reject the evidence of PWs 2, 3 and 8 or to interfere with the conclusion arrived at by the trial court which is based on cogent evidence of the above witnesses. The learned counsel appearing for the appellant could not point out any sort of error or illegality in appreciating the evidence and coming to the conclusion of guilt. Though the appellant has a case that he handed over charge to the second accused on the afternoon of 14.7.1995, there is no evidence at all. There is no charge handing over report. No oral evidence also. the appellant was not seen maintaining the cash book. The defence version would show that the appellant has no courtesy to truth. He dared to make wild allegation against Pw.2 to wriggle out of the prosecution. There is no bona fides. The appellant has no good explanation regarding the shortage of commodities and short remittance of sale proceeds established by the evidence of PWs 2,3 and 8 supported by Exts. P2 to P5, P6 series, P7, P9 and P10. I find no good reason to interfere with the finding of guilty and conviction thereon as it is based upon cogent evidence. The conviction under challenge is therefore confirmed. 9. Alleging that the appellant was ailing, the learned counsel has produced Annexure-1 to 4 along with Crl.M.Appln. No.3181 of 2011. The petition is accompanied by an affidavit sworn by the appellant. In para 4 of the affidavit, it is averred that the appellant has been suffering from CRL. A. NO. 849/2003 12 Diabetes and unstable angina from 2001 onwards. Annexure-IV is a certificate dated 7.1.2002, wherein it is certified that petitioner who was then aged 46 years had undergone impatient treatment from 12.11.2001 to 17.11.2001 for Diabetes mellitus, CAD. It is submitted that CAD is the short form of Coronary Artery disease and unstable angina. Annexure-1 would show that the appellant was admitted in the Medical College Hospital, Thiruvananthapuram, on 8.3.2011 with complaint of pain penis one week and discharged on 14.3.2011. Though it is seen that he had undergone treatment till 31.3.2011 what exactly the diagnosis is not revealed out. Whether it is fully curable or not is not mentioned. No head or tail can be made out from Annexure 2 and 3. The documents produced did not show that as on the date, the petitioner has been suffering any heart ailment. Probably he may be continuing to suffer the diabetes and on medicines. That is not at all a sufficient reason to deviate from the minimum sentence prescribed under Section 13(2) of the PC Act. Taking into account of the fact that Petitioner has been undergoing the treatment and he is a diabetic patient, I find that the minimum sentence, ie. imprisonment for one year for offence under Section 13(2) r/w 13(1)(c) along with the fine imposed by the trial court would meet the ends of justice. For offence under Section 409 IPC, the substantive sentence similar to the sentence awarded CRL. A. NO. 849/2003 13 under Section 13(2) would suffice. In the result, the appeal is allowed in part. While confirming the conviction, the sentence is reduced to simple imprisonment for one year each for offence under Section 13(2) r/w 13(1)(c) and Section 409 IPC. The fine imposed by the trial court for offence under Section 13(2) is sustained with default sentence of simple imprisonment for six months. Under trial imprisonment, if any, shall be set off. Substantive sentences shall run concurrently. P.S. GOPINATHAN, JUDGE. knc/- CRL. A. NO. 849/2003 14 P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. A. NO. 849 OF 2003. = = = = = = = = = = = = = DATED : 4TH APRIL, 2011. J U D G M E N T