IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 CRL.A.No. 487 of 2000 CC.6/1997 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT/ACCUSED NO.1: P.T.JANARDHANAN, S/O THIRUVAN AISWARYA, MALAKKARA.P.O., EDAYARMULA PATHANAMTHITTA, FOREMERLY DY. TAHSILDAR (ELECTION), TALUK OFFICE, SULTHAN BATHERY NOW DEPUTY TAHSILDAR, REVENUE RECOVERY TALUK OFFICE, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR SRI.S.VIJAYAKUMAR RESPONDENTS: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.SUKUMARAN P.N. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.1.2008, ALONG WITH CRL.A. NO. 488 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.487 & 488 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January 2008 JUDGMENT Appellants in these two appeals were tried by the Enquiry Commissioner and Special Judge, Kozhikode in C.C.No.6/97 for offences punishable under Section 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short the act) and also under Sections 409, 420, 468 and 477A read with Section 34 and 120B of the Indian Penal Code. 2. The trial court found the appellants guilty of the offences alleged against them and they were accordingly convicted and sentenced to undergo Rigorous Imprisonment for two years each and also to pay a fine of Rs.5,000/- each under Section 13(1)(c) and also to undergo Rigorous Imprisonment for two years each and to pay a fine of Rs.5,000/- each under Section 13(1)(d) read with Section 13(2) of the Act. Appellants were also convicted and sentenced to suffer Rigorous Imprisonment for one year each under Sections 409, 420, 468 and 477A read with Section 34 IPC and for Rigorous Imprisonment for one year under Section 120B Crl.A.Nos.487 & 488 OF 2000 :: 2 :: IPC. It was further directed that the sentences of imprisonment will run concurrently. On failure of payment of fine, appellants were directed to undergo Rigorous Imprisonment for one year each. The appellants have challenged the above order of conviction and sentence in these two appeals. 3. The prosecution case in brief was as follows: Accused No.1 was working as Deputy Tahsildar (Election) during 1990- 1991 at the Taluk Office, Sulthan Bathery. Accused No.2 was working as Upper Division Clerk in the same office. Both of them were in charge of the District Council Election and also Lok Sabha Election held during the period mentioned above. The prosecution alleged that the two accused in their capacity as public servants in charge of elections had entered into a criminal conspiracy and committed misappropriation of election funds by creating false vouchers and by falsification of accounts. 4. The prosecution alleged that the accused had committed the above offences in respect of the money covered under ten contingent bills for various amounts. It is not necessary to refer Crl.A.Nos.487 & 488 OF 2000 :: 3 :: to all the above ten contingent bills since the trial court had found that the prosecution had not succeeded in proving the charge against the accused in respect of eight out of the said ten bills. But the trial court found that the two accused had misappropriated a sum of Rs.2,295/- in respect of Contingent Bill No.10/90-91 and Rs.1,370/- in respect of Contingent Bill No.16/91-92 by fabricating and forging vouchers and falsifying the accounts. Since the prosecution had not challenged the finding in respect of those 8 bills, it is not necessary either to refer to them or deal with them. 5. It had come out in evidence that the accused were in charge of the elections and were entitled and authorised to meet expenses which may be incurred for the conduct of the same and to recoup it later from the department. 6. The two contingent bills referred to above were issued by the department in connection with such expenses for the conduct of the elections. Contingent Bills bearing Nos.C.B.10/90-91 and C.B.No.16/91-92 were two of the bills in respect of which the Crl.A.Nos.487 & 488 OF 2000 :: 4 :: court below had found that the appellants had committed the offences alleged against them. The prosecution case was that Contingent Bill No.10/90-91 for a sum of Rs.3,762/- was received by the accused. Accused No.1 had produced Ext.P10 (a), (b) and (c) with an endorsement on the reverse of the bills that he had paid amounts covered by those bills and had thus claimed those amounts. Ext.P10(c) was for an amount of Rs.1,104.50/- issued by M/S Naveen Automobiles at Sulthan Battery for purchase of some motor spare parts. The said bill was dated July 29, 1990. Ext.P10(b) which also bore the same date was for a total sum of Rs.1,190.50/-. But in this bill, the amount of Rs.1,104.50/- covered by Ext.P10(c) was brought forward and some other items were shown as purchases. On the same day viz. July 29, 1990, another bill which was marked as Ext.P10(a) was also produced by accused No.1 which was for a total sum of Rs.1324.25/-. In this bill, the sum of Rs.1190.50 which was the subject matter of Ext.P10(b) bill was also brought forward. In short, accused No.1 had presented three bills referred to above for a total sum of Crl.A.Nos.487 & 488 OF 2000 :: 5 :: Rs.3,762/-. Though actually the total value of the spare parts came to only Rs.1,324.25/-. Thus, the sum of Rs.2,295/- was claimed by accused No.1 by fabricating the above three bills. It had come on record that PW7, the partner of the above firm (M/S Naveen Automobiles) had stated that he had issued the above three bills and accused No.1 had paid the above amounts in advance to him. But obviously the above three bills were inflated and excess to the amount to the tune of Rs.2,295/- was claimed though the actual purchase was only for an amount of Rs.1,324.25/-. The trial court had thus found that accused No.1 had committed offences under Sections 409, 420, 468 and 477A and also under Section 120B on the basis of these three bills. 7. The other evidence adduced by the prosecution against accused No.1 was in respect of Ext.P4(b), (c), (d) vouchers allegedly issued by Vijayalakshmy Printing at Sulthan Bathery. PW24 who claimed that he was the Manager of the said press deposed before the court that he had undertaken printing of voters list, electoral roll, etc. and binding work in connection with Crl.A.Nos.487 & 488 OF 2000 :: 6 :: the election as instructed by the two accused. As regards Ext.P4 (b) the witness stated that he had put his signature in a blank letterhead of the press without making any entries therein. He asserted that he had not received Rs.480/- as indicated in Ext.P4 (b). According to the witness, the said amount might have been incorporated in the blank letter head later, by somebody. He conceded that he did not remember as to whom he had handed over the blank letterhead; it might have been to accused No.1, he said. As regard Ext.P4(c) also he said that he had put his signature in the blank printed voucher. He stated that the handwriting in the printed voucher was not that of his and he had not signed the same and received Rs.650/- mentioned therein. According to the witness, he had issued the above voucher at the request of accused No.1. He also stated that he did not think that the trip sheets referred to in Ext.P4(c) had been printed from his press. This witness also admitted that Ext.P4(d) was yet another blank letter head in which he had put his signature as requested by the accused and that he had not received the sum of Rs.240/- Crl.A.Nos.487 & 488 OF 2000 :: 7 :: mentioned therein. He also stated that in Ext.P19(b) acquittance role, he had put his signature at page 159 against his name, after receiving a sum of Rs.474/-. But he disputed his signature which was seen at page No.156, which was marked as Ext.P19(c). He stated that he had not received the sum of Rs.750/- shown against his name in that entry. 8. Learned counsel for accused No.1 has vehemently contended that PW24 ought not to have been believed by the learned Judge. It is pointed out by the learned counsel that PW24 was at a loss as to what was the total amount payable in connection with the work undertaken by him. He also did not know what was the balance payable in connection with that work. But as rightly pointed out by Sri.P.N.Sukumaran, learned Senior Government Pleader, the evidence of PW24 had clinchingly showed that Ext.P19(c) entry was fabricated by forging the records. The assertion made by PW24 that he had not put his signature in Ext.P19(c) had not been disputed by accused No.1. As regards Ext.P10(a), (b), (c), learned Senior Government Crl.A.Nos.487 & 488 OF 2000 :: 8 :: Pleader submits that those documents speak for themselves. Those bills were fabricated in such a way as to carry forward some amounts which were covered by the contemporaneous bills. 9. Having heard learned counsel for the parties and having perused the relevant materials available on record, I am satisfied that the prosecution had succeeded in proving the charge against accused No.1 under Sections 409, 420, 468 and 477A. I am afraid the evidence on record with regard to the charge under Section 120B has not been satisfactorily proved by the prosecution. Similarly, I am of the view that the evidence adduced by the prosecution with regard to the charge under Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act is not sufficient to hold that accused No.1 guilty of those offences. 10. Coming to the case against accused No.2 who has preferred Crl.A.488/00, it has to be at once noticed that the prosecution had not produced any material to show that he had Crl.A.Nos.487 & 488 OF 2000 :: 9 :: any specific role to play as regards Ext.P4(b), (c), (d) and Ext.P10 (a), (b), (c). All the above vouchers/bills were, according to the prosecution, the hand works of accused No.1. The specific case of the prosecution was that accused No.1 had claimed the amounts covered under those vouchers/bills. It had also come out in evidence that accused No.2 had been transferred sometime during 1991 from the Taluk office, Sulthan Battery. But the prosecution had attempted to prove that the two accused had entered into a criminal conspiracy and fabricated and forged records to commit the above offences alleged against them. But I have already found that the prosecution had not succeeded in proving that the accused were guilty of the charge under Section 120B. In the absence of any reliable or cogent evidence against accused No.2 with regard to the alleged offences committed by the accused in respect of Ext.P4(b), (c), (d) and Ext.P10(a), (b), (c), I am satisfied that accused No.2 is entitled to get the benefit of doubt. Similarly, he is also entitled to get an order of acquittal with regard to the charge against him under Section 13 (1) (c) Crl.A.Nos.487 & 488 OF 2000 :: 10 :: and (d) read with Section 13(2). I am persuaded to take the above view, particularly since the prosecution had failed in proving that the accused had committed the offence in respect of eight out of ten contingent bills referred to earlier. 11. In the above facts and circumstances, Crl.A.488/2000 shall stand allowed. The appellant/accused is acquitted. The bail bond executed by him and sureties shall stand discharged. 12. As regards the appellant in Crl.A.487/2000, I am satisfied that he is entitled to some leniency in the matter of sentence. The accused is alleged to have committed the crime way back in the year 1991. It is brought to my notice that he had been dismissed from service. It is submitted by the learned counsel that the accused and his family consisting of his wife and two grown up girls are in impecunious circumstances. 13. Having regard to the entire facts and circumstances, while acquitting the appellant/accused under Section 13 (1) (c) and (d) and also under Section 120B IPC, the order of conviction passed against him under Sections 409, 420, 468 and 477A is Crl.A.Nos.487 & 488 OF 2000 :: 11 :: confirmed. However, the substantive sentence of imprisonment imposed on him under the above four counts is modified and reduced. Petitioner shall undergo imprisonment for one day each under the four counts and he shall pay Rs.15,000/- each under Sections 409, 420, 469, 477A and in default of payment of fine, he shall suffer rigorous imprisonment for three months each. The sentence of imprisonment shall be concurrent. Appellant shall appear before the court below on February 16, 2008. On his appearance, the court below shall ensure that he undergoes imprisonment till the rising of the court. On his failure to remit the fine amount as indicated above, the court below shall execute the default sentence. (A.K.BASHEER, JUDGE) jes Crl.A.Nos.487 & 488 OF 2000 :: 12 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.487 & 488 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 30th Jan. 2008