IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 CRL.A.No. 249 of 2000(A) ------------------------ CC.3/1999 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT(S): -------------- ANTONY CARDOZA, FORMERLY MANAGING DIRECTOR, KERALA STATE HANDICAPPED PERSONS' WELFARE CORPORATION, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CR.NO.9/97 DY.S.P. VIGILANACE & ANTI-CORRUPTION BUREAU, SIU, THIRUVANANTHAPURAKM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA,J ===================== Crl.Appeal.No.249 of 2000 =========================== Dated this the 18th day of March, 2011 JUDGMENT The appellant challenges conviction and sentence imposed against him under Section 120-B IPC read with Section 109 and 409 and also under Section 13(2) of PC Act, 1988 read with Section 13(1) (c) thereof. The appellant was sentenced to under go Rigorous Imprisonment for a term of 3 years and to pay a fine of Rs.5,000/- and in default to undergo RI for a further term of 5 months under section 120B IPC read with Section 109 & 409 thereof; to undergo Rigorous imprisonment for term of three years and to pay a fine of Rs.7,000/- and in default to undergo rigorous imprisonment for a further term of 7 months under section 409 IPC and to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.8,000/- and in default to undergo rigorous imprisonment for a further term of 8 months under Section 13(2) of PC Act, 1988 read with section 13(1)(c) thereof. The sentence is ordered to run concurrently. (A2 abated). 2. The appellant was charge sheeted along with another [Crl.A.No.249/2000] 2 accused who are the Managing Director of the Kerala State Handicapped Persons' Welfare Corporation (Corporation in short) and LD Accountant working in the same corporation respectively. (The second accused expired and hence charge against him abated.) The appellant alone was convicted for the above said offences. According to the prosecution the appellant and the second accused committed criminal conspiracy to commit breach of trust and criminal misconduct and convert the property under the control of the first accused as a public servant, namely, jack tree timber worth Rs.10,000/-. The said tree was cut and kept in the land allotted for construction of the Head Office of the Corporation. The appellant, fraudulently misappropriated and converted to his own use the said jack tree timber kept in the premise of the site alloted for the construction of Head Office of the Corporation. 3. To prove the prosecution case PW1 to PW11 were examined. Ext.P1 to P15 and MO1 to MO3 series were marked on the side of the accused. Exts.D1 and D2 were marked. While questioned under Section 313 Cr.P.C. appellant denied his involvement in any of the offences. He pleaded innocence. [Crl.A.No.249/2000] 3 There is denial of all the allegations made against appellant. 4. The court below, on analysis of evidence on record found that prosecution proved beyond reasonable doubt all the allegations made against the appellant and convicted him for the various offences, for which, he was charge sheeted. The said conviction and sentences are under challenged in this appeal. 5. The lower court narrated the evidence of all the witnesses in detail in the impugned judgment. I find that I need only refer to the relevant facts which have come out from the testimony of the witnesses examined in this case, which are necessary to dispose of this appeal. PW1 is the LD Accountant of the Corporation and he stated that the appellant is the Managing Director and second accused was the another LD Accountant in the Corporation. PW1 also stated that he is the General Secretary of the Employees Association of the Corporation. According to him during 1995-96, Government allotted an extent of 10 cents of property from out of the Juvenile Home compound at Poojappura, Thiruvananthapuram, for construction of a [Crl.A.No.249/2000] 4 permanent office building to accommodate the office of the Corporation therein. 6. PW1 deposed that he had some information that the jack tree standing in the compound so allotted was cut into logs and was removed by the first accused and it was converted by him for his own use abusing his official position as a public servant. Therefore he send a complaint to the Honourable Minister for Industries and Social Welfare with respect to the said allegation. It is on the basis of said letter that a Vigilance Enquiry was conducted by the Vigilance Head quarters, Thiruvananthapuram. A crime was registered by the Deputy Superintendent of Police. PW1 stated that he had seen the relevant plot and jack tree standing in the said plot and the said tree was cut for the construction of the building. 7. PW2 is a casual employee of the Corporation. He said that he knew that 10 cents of property were allotted by the Government for the construction of a building for the Corporation and the said property was situated near the quarters of the Juvenile Home Superintendent. He also deposed that he was instructed to clear the property before the Minister came for inauguration of the construction of the [Crl.A.No.249/2000] 5 building. He also stated that during the relevant period first accused was the Managing Director and the second accused was the LD accountant. He also stated that in the said 10 cents plot alloted for the construction of the office of the Corporation, jack tree and other trees were standing and jack tree was cut for the purpose of construction of the building. 8. PW2 deposed that he was directed by the second accused to make arrangement for cutting the jack tree logs into pieces and accordingly he went to Nasa saw mill and made arrangements. He also deposed that second accused entrusted him with a letter to be given to the Juvenile Home Superintendent which according to him was a letter requesting the Superintendent to permit removal of a wooden logs. He went to the Juvenile Home Superintendent and handed over the letter, when she told him that she has no objection in taking the said wooden planks since those were cut by the Corporation from the said property. Thereafter the logs were removed to the Sawmill for cutting. After the logs were cut the second accused was informed by PW2, while the former told him that mini lorry would be send and the planks had to be removed in the mini lorry. [Crl.A.No.249/2000] 6 9. The lorry was taken to the office of the Corporation and both accused were present there. The second accused told PW2 that certain vessels have to be taken to Trichur Office of ICDS and along with that, the wooden planks also have to be removed. Those planks have to be taken to the house of the first accused in Alappuzha and it has to be kept in the bath room situated at the back side of the house. PW2 deposed that he had go to the house of the first accused twice and he knew the house. PW2 was also given a photo copy of a letter which was given to the Juvenile Home Superintendent and also another certificate to be shown to the Sales Tax people if needed. 10. Since the photostat copy of the letter was kept by him and he had produced the same to the Vigilance Officers when he was questioned, he identified Ext.P1 as the said letter. He also stated that first accused had told him where the cut wooden planks have to be placed. He deposed that he was instructed by first and second accused that those planks were removed and kept in the bath room of the first accused's house and there were long and short planks eight in numbers each and six other planks. He identified those planks and the [Crl.A.No.249/2000] 7 frames (long and short) from the court as MO1 to MO3 series. 11. PW2 also deposed that those articles had been kept by him in the house of the first accused's bath room and he went to ICDS Office of Trichur and unloaded the utensils on the next day and he came back to Thiruvananthapuram with a lorry. He had come from Thiruvananthapuram with the articles in the lorry on 25.6.1996 and returned on 26.6.1996. He had also given vouchers Exts.P2 to P2(b) written by him, but not signed by him. He stated that the lorry number was stated in the vouchers incorrectly at the request of the second accused. He was asked to write the said number and he did not know the correct number. He also marked a copy of the certificate which was handed over to him to be shown to the Sales Tax Officials, the copy of which was taken by him. 12. PW3 deposed that the Nasa wood industry and Saw Mill is run in the name of his wife and he is running the said saw mill since 1993. He deposed that Ext.P3 bill book which related to 1.4.96 to 4.8.97 was seized by the Vigilance Officials under Ext.P3, from the said saw mill. He deposed that the workers from his saw mill removed the wooden logs from a site of the Handicapped Corporation and one [Crl.A.No.249/2000] 8 Vasudevan Nair came for cutting the wooden logs. He also stated that the original of Ext.P3(a) bill was given to PW2 and the money was also paid by him and that the ceased logs were taken in a mini lorry from the saw mill. He gave statement to the Vigilance Officials. 13. PW4 is a loading and unloading worker and he stated that he knew the quarters of the Juvenile Home superintendent at Poojappura and he also knew the plot alloted to the corporation for construction of the building for office and it is situated on the northern side of the quarters. He also stated that jack tree timber which was cut and kept in the said plot was removed by him and other workers to the saw mill and that one Vasudevan Nair had taken them to the said plot. The logs were cut into pieces at the saw mill of the PW2 and on the same day at 4.p.m. those were taken in a mini lorry from the saw mill and the loading work was done by PW4 and other workers. 14. PW5 is a UD clerk working in the Corporation and she stated that she was working from 14.5.96 till April 1997. She was dealing with accounts of the Integrated Child Development Scheme(ICDS). She deposed that the vouchers [Crl.A.No.249/2000] 9 were recommended for passing. The utensils were being transported and supplied by the Corporation, are necessary for Anganvadi. She identified Ext.P2 series vouchers which were initialled by her and prepared by her, wherein she made endorsement while passed for payment, “may be sanctioned” etc. 15. PW5 deposed that those vouchers had to be sanctioned by the first accused and the first accused had initialled the same. She deposed that she can identify the hand writing of the first and second accused and she is acquainted with their hand writing. She also stated that she had seen the first accused putting his signature. She identified Ext.P1 as a document written by the first accused and signed by him which is a photostat copy. She also stated that it is written by the second accused and it was signed by the first accused. 16. PW6 was the superintendent of the Juvenile Home. She deposed that her quarters was situated in a one acre plot which is on the opposite side of the Poojappura prison. She deposed that there were jack trees, coconut trees etc. in the said property. She also deposed that the Government allotted [Crl.A.No.249/2000] 10 10 cents property to the Corporation for the construction of an office. It was 10 to 15 meters away from the quarters. There was a jack tree standing in the said plot which was cut and removed for the construction of the Corporation office. One day the labourers started cutting the coconut tree standing in the plot. Since it was taken on auction she demanded for getting some documents if those trees were to be cut. 17. Accordingly a letter was brought to PW6 which was issued by the first accused. On receipt of the said said letter, she allowed the trees to be cut and removed. The jack tree and other trees were cut and thereafter, another letter of first accused was brought for removing the wooden logs which were cut and kept in the property. It was removed by one Vasudeven Nair. She identified Ext.P1 as a letter which was in her possession. She also stated that the original of Ext.P1 was not available with her. 18. PW7 deposed that he had witnessed a search being conducted in the house at Alappuzha and the planks of jack tree being seized by the Vigilance officials. He had witnessed search at the request of the Vigilance Unit Inspector. He [Crl.A.No.249/2000] 11 identified signature in Ext.P9 search list. PW8 proved the sanction order, Ext.P10. PW9 deposed that he was working in V.S.S.C as a clerk and he has a motorcycle bearing no.KL 01 F-3437 and he had brought RC book to the court. He stated that the number referred to in Ext.P2(b) voucher is the same as the number of his motor cycle. 19. PW10 is the Vigilance Inspector who had conducted the search in the house of the appellant and the search warrant Ext.P9 were prepared by him. He also seized wooden planks from the bath room situated at the back side of the house of the first accused. PW11 is the Superintendent of Police who was working as Dy.S.P., who registered the F.I.R., Ext.P12, after preliminary enquiry being conducted on the allegation against the accused. The charge was also laid by him and he seized various articles, questioned the witnesses etc. 20. The evidence of PW1, PW2 and PW6 would prove that the plot having an area of 10 cents was allotted to the Corporation for the construction of a building to be used as office of the Corporation. It also come out from their evidence that jack tree was standing in the said property and it was cut [Crl.A.No.249/2000] 12 for the construction of the office in the said plot. It was also stated by PW6 that she wanted some documents before the trees were cut form the said plot since it was taken on auction by her, though the plot was allotted to the Corporation by the Government. Accordingly, a letter was given to her and hence she allowed the trees to be cut. She stated that jack tree was also cut for the purpose of construction of the Office. 21. Learned counsel for the appellant strongly contended that in cases involved offence under section 13(1) (c) and Section 13(2) of the PC Act and Section 409 of the I.P.C entrustment of the property has to be proved. A reading of Section 13(1) shows that a public servant is said to commit offence of criminal misconduct, if he dishonestly and fraudulently misappropriated or otherwise convert for his own use, property entrusted to him or under his control as a public servant. The property misappropriated is to be proved to have been entrusted to accused to make out an offence under Section 13(1) of the PC Act, it is submitted. 22. Under Section 409 I.P.C also, it is well settled that the entrustment of the property has to be proved and learned counsel for the appellant cited various decisions to support of [Crl.A.No.249/2000] 13 his arguments that entrustment is a necessary ingredient to be proved by the prosecution to make out the above said offences. Reliance was placed on the decision reported in Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cohin (AIR 1953 SC 478). 23. There can be no doubt entrustment of the property is a necessary ingredient to make out an offence under Section 409 IPC as well as Section 13(1)(c) of the P.C. Act. Any fact can be proved by oral or documentary evidence. A fact can be said to be proved, when after consideration of the matters before the court, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. 24. In this case the oral testimony of PW1, PW2 and PW6 abundantly establishes that the jack tree timber was kept in the plot which was allotted for the construction of an office of the Corporation. It was stated that 10 cents of plot was alloted by the Government for the construction of an office building and a jack tree was standing there which was cut into pieces. There is absolutely no reason to disbelieve the [Crl.A.No.249/2000] 14 evidence given by PW1, PW2 and PW6. PW6 is quite conversant with facts relating to the entrustment because the property allotted is a part of the compound in which her quarters was situated. 25. PW6 stated that the quarters of the Juvenile Home Superintendent was situated in one acre of land out of which on the northern side of the quarters, 10 cents were allotted to the Corporation for the construction of the Office. PW1, PW2 and PW6 were cross examined at length, but nothing was brought out in evidence to discard the same. The Investigating Officer was also cross examined on behalf of the accused and nothing is brought out from his evidence also to indicate that the said property was not actually allotted to the Corporation. 26. There is nothing on record to suggest that those witnesses were perjuring to support the prosecution deliberately to make out a false case against the accused. It is not brought out from the evidence that the entrustment was by way of any documentary evidence. Nothing was brought out to show that the entrustment of the property allotted to the Corporation was evidenced by documents. In the absence [Crl.A.No.249/2000] 15 of any material to indicate that the entrustement was by virtue of documents, the court cannot presume that there was existence of any document to establish “entrustment”. 27 Therefore non production of the documents cannot lead to any adverse inference. Nothing was brought out from the evidence to draw an adverse inference under Section 114 (g) of the Evidence Act. Though learned counsel appearing for the appellant vehemently argued that production of the document is a must, and oral evidence cannot be accepted to conclude the factum of entrustment. I can only reject this argument, on the facts of this case. 28. No question was put to any of the witnesses to bring out that the property was entrusted by way of any order in writing. But as stated by PW2, the Minister was to come for a function and for that purpose, he was asked to clear the property and the trees were cut which included the jack tree also. In all cases the production of documentary evidence may not be necessary to prove a fact. The undiscredited version of the witnesses reveal from the “entrustment” and hence there is absolutely nothing wrong in the court acting upon such oral evidence. However, if it is brought out from [Crl.A.No.249/2000] 16 evidence that documents are available to prove a particular fact and if it is also brought out that the document is withheld by the prosecution deliberately, the court may draw an adverse inference under Section 114(g) of the Evidence Act. 29. There is no rule that the court cannot act upon oral evidence to prove “entrustment” especially when there is nothing on record to show that there are records or documents to prove it. It is submitted that the transaction being one relating Government property, it will be borne out by a document. But no question was put to any of the witnesses and nothing was brought out from their evidence to show the existence of any document to prove the entrustment. The court cannot proceed or surmises that there would be documentary evidence to prove all transaction relating to Government etc. the evidence adduced by the prosecution on the facts and circumstances of this case is more than sufficient to prove that 10 cents of property was allotted to the corporation from where the jack tree involved in this case was cut and removed. 30. Much was argued about the admissibility of Ext.P1 and Ext.P6, two documents which are signed by first accused, [Crl.A.No.249/2000] 17 supported by decisions. It is true that Ext.P1 is a photostat copy of a letter purported to have been written by first accused and issued to PW6 Superintendent, requesting her to release the wood cut from the land allotted to the Corporation. This is dated 20.6.1996. PW2 stated that this document was “entrusted” by second accused to him while the wooden planks were being removed in the mini lorry to the house of the accused. His evidence makes it is clear that the original was not available and he was not in a position to produce the original. There is no reason to reject this version. 31. As per the evidence adduced by the prosecution, original was handed over to PW6 and PW6 deposed that a letter of the nature Ext.P1, was given to her and she was addressed as “Madam” in the said letter. Section 65 of Evidence Act lays down the cases in which secondary evidence relating to documents may be given. As per Section 65 of the Act secondary evidence may be given of the existence, condition or contents of a document in the cases referred to in clause (a) to clause (g). Clause (c) refers to a case when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any [Crl.A.No.249/2000] 18 other reason not arising from his own default or neglect, produce it in reasonable time. 32. It has come out from the evidence that PW2 was giving evidence in respect of Ext.P1 and its contents was not able to produce the original. It is also come out from the evidence of the Investigating Officer and that of PW6 that the said letter was not available. Therefore, in cases where the original of a letter or a document lost or destroyed and if original cannot produced, secondary evidence may be given, of the existence, condition or contents of a document. The requirements of Section 65(c) are made out in this case so as to admit Ext.P1 as secondary evidence. 33. If the circumstances under which secondary evidence may be admitted are brought out in evidence there is no reason why such document should not be admitted. If such document is admitted in evidence under Section 65 as secondary evidence, there is no reason why the contents of such document cannot be admitted in evidence. Therefore Ext.P1 was rightly admitted in evidence as secondary evidence in the absence of existence of the original and the inability of PW6 to produce the same for none of his default or [Crl.A.No.249/2000] 19 neglect. There is no illegality in rejecting Ext.P1 as inadmissible. 34.Learned counsel cited various decisions reported in J. Yashodha v. K,Shobha Rani (2007 (3) SCC (Criminal) 9), Government of Andrapradesh and others v. Karri Chinna Venkata Reddy and others ( AIR 1994 SC 591), Kalyan Singh v. Smt.Chhoti and others (AIR 1990 SC 396), K.R. Easwaramurthi Goundan v. Emperor (A.I.R. (31) 1994 Privy Counsel 54),Jiwan Dass v. State of Haryana ( 1999 CRI.L.J 2034), P.C.Purushothama Reddiar v. S.Perumal (AIR 1972 SC 608), Ashok Dulichand v. Madhavlal Dube and another(AIR 1975 SC 1748),M/s. Hindustan Construction Co.Ltd v. The Union of India (AIR 1967 SC 526), Chintaman and another v. State of Maharashtra and another (AIR 1997 SC 448). 35. On going through