IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 CRL.A.No. 883 of 1999 CC.12/1998 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT/FIRST ACCUSED: M.V.MOHAMMED SHERIFF RESIDING AT JANNATHU HOUSE MUNDAKKAYAM P.O. FORMERLY SPECIAL DEPUTY TAHSILDAR CARDAMOM SETTLEMENT NEDUMKANDAM AND NOW WORKING AS H.M.O. LAND TRIBUNAL, THIRURANGADI BY ADV. SRI.BABU KARUKAPADATH SRI.A.SHAFEEK SRI.T.O.NOUSHAD RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY SUPERINTENDANT V.A.C.B., IDUKKI BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, ALONG WITH CRL.A NO.882 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.882 & 883 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of March 2008 JUDGMENT These two appeals which are at the instance of the two accused in C.C.12/98 on the file of the Enquiry Commissioner and Special Judge, Thrissur are directed against the judgment of conviction and sentence passed against them. The trial court found the appellants guilty under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 and also under Section 120B, 409, 471 and 477A read with Section 34 IPC. They were convicted and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs.25,000/- each and in default to undergo simple imprisonment for 1½ years each under Section 13(1)(c) read with Section 13(2) of the Act. They were also sentenced to undergo rigorous imprisonment for one year each under Section 120B IPC; rigorous imprisonment for four years each under Section 409 IPC; rigorous imprisonment for two years each under Section 471 IPC; and rigorous imprisonment for Crl.A.Nos.882 & 883 OF 1999 :: 2 :: three years each and to pay a fine of Rs.20,000/- each and in default to undergo simple imprisonment for 1½ years each under Section 477A IPC. 2. Vigilance and Anti Corruption Bureau, Idukki had charge sheeted the appellants for the offences mentioned above. Prosecution case in brief was that accused No.1 was working as Special Deputy Tahsildar, Cardamom Settlement at Devikulam during July 1993 while accused No.2 was the Special Village Officer in the office of accused No.1. The two accused being public servants had hatched a criminal conspiracy during July 1993 pursuant to which they collected a sum of Rs.2,22,800/- towards land conservancy charges from certain landholders (PW1 and PW2). The accused had collected the money between July 8, 1993 and August 11, 1993 and issued T.R.5 receipts in acknowledgment thereof. The said money was misappropriated by the accused without entering the same in the cash book or remitting it at the Sub Treasury, Devikulam. Prosecution alleged that for the above purpose accused had falsified the entries in the cash book and Crl.A.Nos.882 & 883 OF 1999 :: 3 :: dishonestly cancelled the Counter Foils of T.R.5 receipts. They had used the counter foil receipts as genuine with intent to make them appear that collections were not effected under those receipts. 3. Before the trial court, the prosecution had examined PW1 to PW9 and Exts.P1 to P30 were marked on its side. On the side of the defence DW1 was examined and Exts.D1 to D9 were marked. 4. The court below after considering the oral and documentary evidence on record took the view that the prosecution had succeeded in proving the charge against the accused and accordingly they were convicted and sentenced as mentioned above. 5. PW1 deposed before the court that three land conservancy cases relating to him and his close relatives were pending before the Cardamom Settlement Officer. These three cases were L.C.Nos.35/93, 34/93 and 40/93. In addition to the above, there were seven other land conservancy cases also, in respect of the land purchased by his close relatives Crl.A.Nos.882 & 883 OF 1999 :: 4 :: from PW2. He further stated that he had remitted a total sum of Rs.2,22,800/- as land conservancy dues (prohibitory tax) in respect of all these cases. The payment was made by him on behalf of his relatives/land holders as authorised by them. PW1 stated that the above sum of Rs.2,22,800/- was entrusted by him to accused No.1 for which ten receipts signed by accused No.1 were issued. He further stated that accused No.2 had written these receipts. He had also seen accused No.1 putting his signature in them. But a little later in the course of his examination PW1 stated that he did not see accused No.2 writing the receipts, though it was he who had brought these receipts before accused No.1 for signature. According to this witness, accused No.2 and PW2 came to his residence after about 1½ to 2 months and returned the money. On receipt of the money he gave back the ten receipts to accused No.2. Those receipts were marked in the case as Exts.P4(a), P4(c), P4(e), P5 to P10 and P18. According to PW1, no dates had been entered in these receipts. In cross examination, PW1 stated that he and his Crl.A.Nos.882 & 883 OF 1999 :: 5 :: wife were not available at home for most of the days during that period. To a suggestion made on behalf of the accused that the amount had been paid back to him on the second day itself, it was stated by PW1 that he had not received the money within two days. 6. PW2 deposed before the court that he had entered into an agreement for sale of about 100 acres to PW1 and his close relatives. He conceded that ten land conservancy cases in respect of the above land had been pending before the Deputy Tahsildar, Cardamom Settlement Office, Devikulam. This witness also stated that he had gone along with accused No.2 to repay the sum of Rs.2,22,800/- to PW1. He further deposed that PW1 had remitted the amount at the Cardamom Settlement Office on his behalf and other landholders. He also stated that accused No.2 had received the ten receipts after the amount was repaid to PW1. At that time, accused No.2 had put the date as November 16, 1993 in the receipts. I will refer to the evidence of PW2 in detail, a little later. 7. PW3, who was working as the Assistant Settlement Crl.A.Nos.882 & 883 OF 1999 :: 6 :: Officer, Cardamom Settlement Office at Devikulam, deposed before the court that at the relevant point of time accused No.1 was the Deputy Tahsildar at Nedumkandam, and he was in additional charge of Devikulam Cardamom Settlement Office also at that time. He further stated that accused No.2 was the Village Officer in that office under accused No.1. Therefore, he could identify the handwriting and signature of the accused in Exts.P4(a) to P4(l) receipts and counterfoils. He stated that the handwriting in those documents were that of accused No.2. The signature in Exts.P4(c) to P4(e) was that of accused No.1. The other handwritings and signatures of the two accused were also identified by PW3. He also identified Ext.P20 cash book maintained at the Devikulam office. With reference to pages 35 to 59 in Ext.P20, which was for the period from 8th July 1993 till December 31, 1993, he stated that there was no corresponding entry with regard to the T.R.5 receipts for accepting the sum of Rs.2,22,800/- from PW1. He also stated that Exts.P1, P1(b), P2(b), P11(b), P12(b), P13(b), P14(b), P15(b), P16(b) and P17(b) orders were Crl.A.Nos.882 & 883 OF 1999 :: 7 :: passed by accused No.1 on July 22, 1993. Prohibition assessment to be collected from the land holders in those cases was reckoned on the basis of the rate mentioned in those orders. Demand notices in respect of Exts.P1 to P3 and P11 to P17 could have been issued only after the date of the order viz. July 22, 1993. All the demand notices were signed by accused No.1. In Ext.P20(a) just below the opening balance it was noted as follows: “Receipt Nos.44 to 46 cancelled.” The said handwriting was not that of accused No.2. He further stated that he could not say whether the handwriting was that of accused No.1. Similarly, entries in respect of the other T.R.5 receipts were also referred to by PW3. He also spoke about the orders of cancellation of L.C. proceedings in Exts.P1 to P3 and Ext.P11 to P17. He admitted that no date was seen on the orders of cancellation. In cross examination, PW3 stated that Ext.P19(b) representation submitted by PW2 and others was received by him with an endorsement made by the Revenue Minister. In Ext.P19(b), it was requested by PW2 and others that they may Crl.A.Nos.882 & 883 OF 1999 :: 8 :: be allowed to remit the arrears of dues under the Land Conservancy Act amounting to Rs.4,50,000/- without insisting for interest. On the said representation, the Minister for Revenue and Law had put a note directing the Assistant Settlement Officer, Kumili to take “urgent necessary action excluding interest”. Consequently, Ext.P19(c) communication was sent on July 15, 1993 by PW3 to the Cardamom Settlement Officer, Devikulam (CW15) informing him that necessary direction had been issued to the Special Deputy Tahsildar, Devikulam (accused No.1) to collect L.C. dues excluding interest and also to proceed in the matter “as per L.C. Act'. It is seen from Ext.P19(c), that copy of the said communication was marked to accused No.1 for necessary action. PW3 also deposed that CW15 had told him that the L.C. proceedings initiated against PW1, PW2 and others were not proper or correct especially since the High Court, the Government and the Civil Court at Thodupuzha had issued orders interdicting the Department from initiating such action. CW15 had further instructed PW3 to cancel the L.C. Crl.A.Nos.882 & 883 OF 1999 :: 9 :: proceedings initiated already. PW3 conceded that all these instructions issued to him by CW15 were only oral. He further stated that on the next day he had summoned accused 1 and directed him to cancel the L.C. proceeding. When accused No.1 had informed him that he had already collected the L.C. dues, he was directed to refund the same. In answer to a specific question in cross examination, PW3 stated that accused 1 had cancelled the L.C. proceeding and refunded the money only on the basis of the direction issued by him and CW15. 8. PW4, the Sub Treasury Officer, Devikulam deposed that the amount of Rs.2,22,800/- collected by the accused under T.R.5 receipts had not been remitted at the Sub Treasury. He proved Exts.P22 and P23 Subsidiary registers in this connection. PW5 stated that he had received the sanction order to prosecute the appellants, which was marked as Ext.P24. PW6 registered the first information report (Ext.P25). PW7 conducted preliminary investigation. PW8 stated that he had questioned PW5. PW9 completed the Crl.A.Nos.882 & 883 OF 1999 :: 10 :: investigation and laid the charge sheet before the court. 9. While assailing the order of conviction and sentence, learned counsel appearing for the two accused have vehemently contended that the court below had proceeded at a totally wrong tangent overlooking the inherent flaws in the prosecution case. It is pointed out by the learned counsel that the evidence of PW3 will clinchingly show that the accused were totally innocent. They further contend that the prosecution had tried to suppress very many material documents in an attempt to cover up the real story behind the prosecution case. It is the specific case of accused No.1 that he had initiated L.C. proceedings against PW1, PW2 and others as per the provisions contained in the L.C. Act and the Rules as could be seen from Exts.P1, P2, P3, P11 to P17 ('b' series). He had also collected the L.C. dues and issued T.R.5 receipts. But he was informed by PW3 to refund the amount to PW1, if it had already been collected. He was further directed to cancel L.C. proceedings which were initiated already. Crl.A.Nos.882 & 883 OF 1999 :: 11 :: 10. It is curious to note that PW3, who is the superior officer of accused No.1, had claimed that he had issued the above orders as per the oral instructions received by him from CW15, who was his superior officer. Strangely, CW15 was not examined by the prosecution. No attempt was also made by the prosecution to explain on what basis PW3 had issued such orders on the strength of some oral instructions allegedly issued by CW15. 11. A perusal of the deposition of PW3 coupled with Exts.P19(b) and P19(c) will undoubtedly cast a dark shadow over the entire prosecution case. PW3 for some unknown reason had not been declared hostile because obviously his evidence was detrimental to the prosecution case. It may be noticed that the entire prosecution case was primarily projected through the evidence of PW3, who was the only official witness who gave evidence as regards the collection of the L.C. dues and the alleged failure of the accused to remit it in the treasury. 12. But according to the learned Public Prosecutor the Crl.A.Nos.882 & 883 OF 1999 :: 12 :: evidence of PW3 had brought out that the accused had failed to remit the money collected by the accused in the treasury on the same day or atleast on the next working day itself. Similarly, the accused had also failed to enter the collection in Ext.P29 cash book. This clearly proved that the accused had misappropriated the money collected from PW1. The evidence of PW1 showed that he had received the money back from accused No.2 only after about 45 days. Learned Public Prosecutor submits that the accused had illegally kept the money with them during the entire period without remitting it to the treasury or even entering it in the cash book. Therefore, the accused had committed the offence alleged against them, it is contended. 13. In response to the above contention, it is submitted on behalf of the accused that PW3 himself had deposed before the court that in the event of occurrence of any mistake in the cash receipt or if the party refused to remit the entire amount after preparation of the receipt the collection need not be entered in the cash book. It is contended by the learned Crl.A.Nos.882 & 883 OF 1999 :: 13 :: counsel that shortly after collecting the money the accused had been informed by PW3 that it had to be refunded to PW1. Though the accused had attempted to make refund, PW1 was not available at his residents. 14. The above explanation, which is apparently feeble, if not puerile, cannot be accepted. But as mentioned earlier, the evidence of PW3 will lend some support to the defence version that the amount was kept in the office pursuant to the direction issued by PW3. In this context, it may also have to be noticed that there was some attempt on the part of the prosecution to cover up the fact that someone else was interested in scuttling the entire prosecution, be they the superior officers of the accused or some outside agencies. 15. In this context, it may also be pertinent to note that neither PW1 nor PW2 had lodged any complaint against collection of the money from them especially in the backdrop of issuance of orders of cancellation of the L.C. Proceedings. It is not discernible from the file as to why PW3 had instructed accused No.1 to issue orders of cancellation of the Crl.A.Nos.882 & 883 OF 1999 :: 14 :: L.C proceedings because in Ext.P19(c) he had informed CW15 that accused No.1 had been directed to continue with the L.C. Proceedings. As mentioned earlier, there existed some gaping holes in the entire story. 16. It may also be noticed that Ext.P25, F.I.R. was registered more than 2 years after the alleged commission of the offences. Of course, learned Public Prosecutor has sought to explain it away by saying that for the enquiry contemplated under the annal relating to Vigilance cases, some delay was inevitable. But, still for the reasons stated above, I am not satisfied with explanation given by the accused for withholding remittance of the amount in the treasury for more than 1 ½ months. However, the fact remains that the money had been refunded and the original T.R.5 receipts were taken back from PW1. 17. The prosecution had also not explained why the L.C. Proceedings initiated against PW1 and other landholders had been cancelled. Therefore, obviously there was something more what meets the eye in the delay in registering the case Crl.A.Nos.882 & 883 OF 1999 :: 15 :: against the accused. As per the court charge the accused had collected Rs.2,22,800/- towards L.C. Charges as per T.R.5 receipts during the period from 8.7.1993 to 11.8.1993. But no evidence has been adduced by the prosecution that the accused had actually collected the money during the period mentioned above. More importantly the above charge against the version given by PWs 1 and 2 in the case. 18. It is vehemently contended by the learned counsel for the two accused that the entire evidence, even if it accepted on its face value, will not show that there was fraudulent or dishonest intention on the part of the accused in the alleged transaction. Accused had acted only in accordance with the directions and instructions received from their superior officers. But as noticed already, the superior officer (PW3) had given a very hazy and evasive version of the entire episode. CW15 who was the superior officer of PW3 was never examined. Thus, it remained a mystery as to why L.C. proceedings which were initiated against PW1 and other landholders had been cancelled. If the above aspects are Crl.A.Nos.882 & 883 OF 1999 :: 16 :: considered in the backdrop of Exts.P19(b) and (c) and also the orders of cancellation of the L.C. Proceedings, I am satisfied that the accused are entitled to get the benefit of doubt. Therefore, the judgment passed by the court below is set aside. The appellants are found not guilty and they are acquitted. Appeals are allowed. (A.K.BASHEER, JUDGE) jes Crl.A.Nos.882 & 883 OF 1999 :: 17 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.882 & 883 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 14th Mar. 2008