IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 CRL.A.No. 376 of 2004() -------------------------------- CC.19/2000 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT /ACCUSED NO.1: --------------------------------------------- K.S.VALSAMMA, FORMER EXECUTIVE OFFICER, KURICHI GRAMA PANCHAYAT, (WIFE OF VASUDEVAN NAIR, VINOD BHAVAN, VELLAVOOR VILLAGE, KADAYANICADU, MANIMALA, KOTTAYAM DISTRICT) BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID (THALASSERY) RESPONDENT(S): COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, V.A.C B, KOTTAYAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL NO.376 OF 2004 ORDER IN CRL.M.APPL. NO.2704/2004 IN CRL.APPEAL NO.376/ 2004 DISMISSED. SD/- P.S.GOPINATHAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. CRL.APPEAL NO.376 OF 2004 APPENDIX APPELLANT ANNEXUERS: 1. CERTIFIED COPY OF THE JUDGMENT DATED 25.02.2004 IN C.C 19/2000 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR. 2. PETITION FOR SUSPENSION OF SENTENCE. TRUE COPY PA TO JUDGE P.S.GOPINATHAN, J. ================== Crl.A.No.376 OF 2004 ================== Dated this the 31st May, 2011. JUDGMENT The appellant is the first accused in C.C.No.19 of 2000 on the file of the Enquiry Commissioner and Special Judge, Thrissur. She, along with two other accused, was prosecuted by PW9, the Inspector attached to the Vigilance and Anti-corruption Bureau, Thrissur, alleging offences under Section 13(2) r/w 13(1) (c) & (d) of the Prevention of Corruption Act, hereinafter, for short, the 'PC' Act and Section 409, 468, 471, 477A, 109 and 120B IPC. 2. After fullfledged trial, by judgment dated 25.2.2004, the learned Special Judge arrived at a finding that the prosecution had not succeeded to establish offences under Section 13(2) r/w 13(1) (d) of the PC Act or under Sections 468, 471, 477A, 109 or 120B IPC. It was also found that no offence as against accused 2 and 3 were established. But, it was found that offence under Section 13(2) r/w 13(1)(c) of PC Act and Section 409 IPC was established against the Crl.A.No.376 OF 2004 2 appellant. Consequently, the appellant was convicted for offence under Section 13(2) r/w 13(1)(c) of the PC Act and Section 409 IPC. She was sentenced to simple imprisonment for one year on each count and to pay a fine of Rs.20,000/- under Section 13(2) r/w 13(1)(c) with a default sentence of simple imprisonment for three months. Assailing the above conviction and sentence this appeal was preferred. 3. The prosecution case in brief is that, the appellant was the Executive Officer of the Kurichi Grama Panchayat in Kottayam District from 27.2.1991 to 12.9.1991. The second accused was the President of the Panchayat. Third accused was a private Engineer. Funds were alloted to the Panchayat under the Untied scheme for the maintenance work of Chelachira, a water pond. The work was undertaken by the Panchayat directly. According to the prosecution, Rs.1,58,205/- was sanctioned for the said work. Ext.P1(c) is the estimate basing which work started. The prosecution would allege that during the course of the execution of the work, the appellant, along with accused 2 and 3 entered into a Crl.A.No.376 OF 2004 3 criminal conspiracy and in pursuance to the criminal conspiracy, they forged documents and made false entries in the 'M' book which was marked as Ext.P3 and the appellant in abuse of the office committed criminal misconduct and breach of trust of a sum of Rs.55,653.42, inclusive of the value of 20000 bricks and value of 47 bags of balance cement and towards the cost of work not executed, but recorded as executed by forgery and falsification of accounts and using the forged documents as genuine bill was passed. It appears that in pursuance to some complaint, a preliminary enquiry was conducted by PW10. On the basis of the materials collected, a case as Cr.No.V.C.2/97 of V.A.C.B., Kottayam was registered against the appellant and 11 other persons for offences under Section 13(2) r/w 13(1) (c) of the PC Act and under Sections 409, 465 and 471 r/w 34 IPC. The second accused before the trial court was not an accused in the first information report. The investigation was taken over by PW10. PW9, after completing the investigation, filed a charge sheet against the appellant and two others alone Crl.A.No.376 OF 2004 4 after dropping 10 persons mentioned in the first information report. The learned Special Judge took cognizance and issued process responding to which the appellant and other accused entered appearance. Copies of the final report and connected documents were furnished, and then heard. On finding that, there are materials to send the accused for trial, a charge for the said offences was framed to which the accused pleaded not guilty when read over and explained. Therefore, they were sent for trial. On the side of the prosecution, PWs.1 to 10 were examined. Exts.P1 to P31 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 (1)(b) of the Code of Criminal Procedure. The appellant admitted her status as Secretary of the Kurichi Grama Panchayath. The estimate for the work, the execution of the work, sanction of the amount, purchase of the materials etc. were admitted by the appellant. She further stated that she, who entered service as a Lower Division Clerk on 2.5.85, was promoted and posted as an Executive Officer and she was having no sufficient experience in public works Crl.A.No.376 OF 2004 5 and she was not provided any training and that the Head Clerk was maintaining the voucher and documents relating to the work and was disbursing the money. The work in dispute started, long before she assumed the office under the supervision of the Sub Committee and that she had signed certain documents which were prepared by the experienced Head Clerk and that under the untied fund for 1990-91 there was instruction to spend the sanctioned amount on or before 31.3.1991. Apprehending disciplinary proceedings for non utilization of fund, with alloted funds, materials were purchased before 30.3.91 and collected at the work site. The cement was stocked at the house of a neighbour. While the work going on, due to monsoon, work had to be stopped. Measurements were taken to the extent to which the work was executed and that she left the office on 12.9.91 and while relieving the office she had handed over all material to her successor. Responding to the call to adduce defence evidence, 7 documents were marked as Exts.D1 to D7. An Assistant Executive Engineer and another Engineer who Crl.A.No.376 OF 2004 6 prepared the estimate were examined as DWs.1 and 2. The learned Special Judge on appraisal of the evidence, arrived at a conclusion, as I mentioned earlier that the prosecution failed to establish any offence of forgery, cheating falsification of accounts, criminal conspiracy etc. against the appellant and also failed to establish any offence against accused 2 and 3. Further, the trial court found that 20,000 bricks were purchased, spending an amount of Rs.13,100/- and 200 bags of cement were purchased at the rate of Rs.105/- per bag. No brick was used for the work. 153 bags of cement alone was used for the execution of the work. All the 20000 bricks and 47 bags of cement which were in trust with the appellant were misappropriated after committing breach of trust. In para 23 of the judgment impugned, the trial court arrived at the following finding:-. “23. It is established in this case that 20000 bricks were purchased for Rs. 13,100/- and payments were made for the same. It is also established that no bricks were used for the said maintenance work to Chelachira Pond. These facts are not disputed by the 1st accused. Likewise the purchase of 200 bags of cement and the payment for the same is also established. Ext.P3 'M' book would make it crystal clear that 153 bags of cement were only used for the said work. Then definitely 47 bags of cement were available when the work was stopped in July, 1991. Cement was purchased at the rate of Rs.105/- per Crl.A.No.376 OF 2004 7 bag. Thus, the value of the balance 47 bags of cement would come to Rs.4,935/- 1st accused as the Exe. Officer of the Panchayat was having control over the balance 20000 bricks and 47 bags of cement. These facts are also admitted by the 1st accused. Thus, entrustment of the aforesaid 20000 bricks and 47 bags of cement is admitted and proved in this case. Then it for the 1st accused to give explanation for those items. It is to be noted that 1st accused was transferred from the Panchayat on 12.9.1991. The work was stopped in July, 1991. 1st accused has no case that balance cement was used for any other work or the balance cement was sold and the amount was remitted in the Panchayat account. The case of 1st accused that she handed over the said 20000 bricks and the aforesaid 47 bags of cement to her successor Exe. Officer cannot be believed or accepted without reliable evidence. There is nothing on record to show that the balance cement and the 20000 bricks were entrusted to her successor officer. When PW1 was cross-examined a document was shown as handing over list with the signature of the 1st accused. But that document was not produced before this court. It was not marked in this case. But on 6th February, 2004 the 1st accused produced a document with the headings “statement/Report of transfer of Executive Officer.” This document was produced along with the memorandum of arguments submitted u/S. 314 Cr.P.C. by the 1st accused and requested for admitting the said document. But the said document would not give any indication about handing over of Stock Register related to Untied Fund. There is also no whisper in this document about the handing over of 20000 bricks or balance 47 bags of cement. The evidence of PW1 would show that there was Stock Register and separate stock Register for Untied fund. There is noting in this document to indicate the handing over of the balance materials as per the Stock Register related to Untied Fund. There is also no mention about handing over of the Stock Register related to Untied Fund. So the contentions of the 1st accused that the balance materials available with her were handed over to her successor officer cannot be upheld. Once entrustment is proved or established, then it is the duty of the officer who was having the custody of the documents or the properties to show that the said properties or documents were handed over to his successor officer. It is the duty of the custodian to account the materials entrusted with him. In the present case there is no evidence to show that the balance materials namely, 20000 bricks and 47 bags of cement (were handed over to the successor Exe. Officer). Then the only possible conclusion that can be drawn is that the 1st accused dishonestly misappropriated those materials or she converted the same for her own use. The value of the balance materials would come to (13,100 + 4935) Rs. 18,035/-. Thus, the prosecution has succeeded to prove the misappropriation of Rs.18,035/- by the 1st accused. Thereby she has committed the offences punishable u/s. 13(1)(c) r/w 13(2) of the P.C. Act, 1988. She has also committed the offence of criminal breach of trust with respect to the aforesaid balance Crl.A.No.376 OF 2004 8 materials entrusted with her. So, he 1st accused is found guilty of the offence punishable u/s.409 of IPC. She is found not guilty of the offences punishable U/s.13(1)(d) r/w. 13(2) of the PC Act and U/ss.120B, 468, 471, 477A and 109 IPC. These points are accordingly.” Following that conclusion, the appellant was convicted and sentenced as stated earlier. 4. The fact that the appellant was the Secretary of the Kurichi Grama Panchayath was not disputed but admitted during the course of the evidence and in the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure. The finding of the trial court regarding the status of the appellant was not assailed in this appeal. But the learned counsel appearing for the appellant Sri.C.Khalid submitted that Ext.P12 order according sanction to prosecute the appellant was issued by PW3, then Director of Panchayath and that the State Government was the authority competent to remove the appellant from service and that PW3 was not the authority competent to remove the appellant from service. Therefore, according to the learned counsel Ext.P12 is not a valid sanction and that the prosecution, conviction and Crl.A.No.376 OF 2004 9 sentence thereon are vitiated. Going by the evidence of PW3, I find that PW3 was the Director of Pachayat and that the Director of Panchayat is the competent authority to accord sanction and after verifying the records, he accorded sanction to prosecute the appellant. The defence could not shake that evidence of PW3 in cross examination. No material was placed before me and there is not even a single whisper in the appeal memorandum that PW3 was not competent to remove the appellant from service. Also, no material is produced to show that the state was the competent authority. In the above circumstance, I find that the trial court is justified in arriving at the conclusion that PW3 was the authority competent to remove the appellant from service and that Ext.P12 is a valid order according sanction to prosecute the appellant. Even if it is assumed that PW3 was not the authority competent to remove the appellant from service and there is no valid sanction, because of Sub Clause (a) to Section 19(3)of the PC Act, the conviction under Challenge can no way to be interfered in appeal. For a correct Crl.A.No.376 OF 2004 10 appraisal, a reading of Sub Clause (a) to Section 19(3) is quite appropriate. “Section 19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) (a) no finding sentence or order passed by the Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub- Section (1), unless in the opinion of court, a failure of justice has in fact been occasioned thereby.” The above provision would show that notwithstanding anything contained in the Code of Criminal Procedure, no finding sentence or order passed by the Special Judge is liable to be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub Section (1), unless in the opinion of court, a failure of justice has in fact been occasioned thereby. There is no mention in the memorandum of appeal that because of the absence or error in the sanction order, there occurred any failure of justice. Though the learned counsel for the appellant argued that there is failure of justice, he is not in a position to explain as to how the failure of justice had occasioned. In the above circumstance, I find that even if Ext.P2 sanction is in any way Crl.A.No.376 OF 2004 11 erroneous, the appellant is not entitled to succeed in the appeal. I further find that there is valid sanction to prosecute the appeal. 5. The evidence of PW1, the then Head Clerk would show that for purchase of cement, Cheque No. 3389 dated 23.3.91 for Rs.29,000/- was issued and for purchase of 20000 bricks, Cheque No.3396 dated 30.3.91 for Rs.30,000/- was issued. PW2, a Cement dealer would depose that he had received Cheque No.3389 for Rs.21,000/- for which he had sold Rs.20,000/- bags of cement to the Panchayat and that Ext.P5 (d) is the bill and P5(e) is the quotation. Purchase of cement deposed by PW1 and sale of the same by PW2 was not assailed in cross examination. Going by the evidence of PW1 and 2 along with connected documents, I find that there is cogent evidence regarding the purchase of 200 cement bags. PW6 would depose that he was the supplier of building materials and that he had supplied 20000 bricks for a value of Rs.13,000/- which he had obtained through cheque No.3396. That evidence of PW6 also was not assailed and I find no Crl.A.No.376 OF 2004 12 reason to reject that evidence. Thus there is evidence regarding purchase of cement and bricks. Ext.P3 is the 'M' book. It would show that the measurement of the work was recorded by the appellant. Ext.P3(a) is the check measurement. It would show that the work so far executed as on 5.7.1991 was measured and recorded in Ext.P3. As per Ext.P3, RR work and DR work for foundation alone were done. 153 bags of cement were used for the said work. No brick work was done. Ext.P3 and Ext.P3(a) were signed by the second and third accused. Regarding the measurement and execution of the work recorded therein there is no dispute at all. Ext.P3(a) would show that out of the 200 bags only 153 bags of cement were used and there would be a balance of 47 bags of cement. Bricks were not at all used. It is not in dispute that after Ext.P3, no work was done. Therefore, the evidence on record is sufficient to conclude that there would be 47 bags of cement and 20000 bricks after Ext.P3 measurement. The question then arises is whether the appellant committed breach of trust in respect of 20000 bricks Crl.A.No.376 OF 2004 13 and/or 47 bags of cement. 6. As I stated earlier, the appellant admitted that she was the Executive Officer from 28.2.1991 and on 12.9.91 she was transferred. According to the appellant during the course of the execution of the work monsoon started and due to inundation the work could not be completely executed and that when she left the office the work was unfinished and that all the remaining materials were entrusted to her successor. The charge handover report was not at all produced by the prosecution. Prosecution has no explanation as to what happened to the charge handover report or as to what all materials were handed over to the successor while the appellant relieving the post of the Executive Officer. Whether the work was completed as on the date of the relieving of the appellant from the post of Executive Officer is also not revealed by any evidence. However, a comparative reading of Ext.P1(c) estimate and Ext.P3(a) measurement would show that the work was not executed in full as was proposed in the estimate. Ext.P1(c) estimate would show that there was Crl.A.No.376 OF 2004 14 proposal for construction of the compound wall with bricks. Ext.P3(a) would show that on 5.7.91, when the measurement was taken the compound wall was not constructed. Within a week thereafter, the appellant left the office on her transfer. Therefore, it is legitimate to presume that the appellant was relieved from office before completion. There is no case for the prosecution that there was no proposal for brick works or that bricks were purchased not for the execution of the work or that excess cement was purchased. So, it is to be presumed that bricks and cement were purchased for the execution of the work proposed in Ext.P1(c) estimate. The appellant cannot be found fault with for purchasing the bricks. So also it couldn't be said that more cement than required was purchased. It is not in dispute that June, July are rainy months and that the work was related to the water pond. So the defence that work could not be completed because of the rain and that the appellant left the office before completing the work appears to be convincing. 7. The very case of the appellant, as I said earlier, is that Crl.A.No.376 OF 2004 15 at the time when the appellant left the office she had handed over the balance materials to her successor. The learned Special Judge found fault with the appellant for not accounting the bricks and the balance cement. Though no document was brought on record during the course of the trial, at the time of argument some documents were produced by the appellant along with the argument note. The judgment of the trial court of which I quoted earlier would show that the learned Special Judge had not marked the documents but considered the contents and arrived at a conclusion that there is no evidence to show that the balance materials including the brick and cement were handed over to the successor. But it is to be taken note that the burden of proof is on the prosecution and no conviction can be entered for failure of the accused to account the property entrusted especially when no investigation was done as to what was done with the property alleged to have been misappropriated or appropriated by the appellant for her own use. The cross examination of PW1 would show that the work site was 3 kms. Crl.A.No.376 OF 2004 16 away from the office. In the above circumstance, it cannot be said that the properties were kept in the office of the Panchayath. Such being the materials disclosed in evidence, to sustain a conviction for offence under Section 13(2) r/w 13 (1)(c) and 409 IPC, it is the duty of the prosecution to establish that at the time when the appellant was relieved from the office she had not handed over the property to the successor. As I mentioned earlier the prosecution had not investigated about the stock register. Neither the list of properties handed over by the appellant at the time when she was relieved from the office was seized. For the reason best known to the prosecution, the successor of the appellant was not examined to depose that either the appellant had not handed over the balance materials at the time of relieving the office or that the materials were not found at the work site. In the nature of the charge, the evidence of the successor of the appellant is a material piece which is missing in the case. Appellant cannot be blamed for that especially because the prosecution has no case that the appellant Crl.A.No.376 OF 2004 17 removed those articles stealthily or otherwise. In the absence of such evidence, it cannot be concluded that the appellant left the office without handing over the bricks and the balance cement to the successor. The failure of the prosecution to examine the successor and non production of charge handover report entitles that the appellant to canvass an inference in her favour. At the least, she is entitled to the benefit of doubt. Criminal jurisprudence does not attract an inference against the accused for failure of the accused to produce document of the nature in this case. It is also pertinent to note that the case was registered more than 6 years after the appellant relieving the office. The charge sheet was submitted two year thereafter and the trial commenced four years thereafter. At this long distance of time, the appellant may not be in a position to collect the documents relating to the material objects which were alleged to have been handed over to the successor at the time when she was relieved from the office on 12.1.91. The appellant was prejudiced because of the delay in registering the crime Crl.A.No.376 OF 2004 18 and the filing of the charge sheet in the sense that she lost the opportunity to secure the documents to defend the charge. In this way of the matter, I find that the appellant is entitled to the benefit of reasonable doubt and she is entitled to an order of acquittal. In the result, the appeal is allowed. While reversing the conviction and sentence under challenge, the appellant is acquitted and set at liberty. The bail bond executed by her