IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 CRL.A.No. 563 of 2002(C) ----------------------------------------- CC.66/2000 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM .................... APPELLANT/SECOND ACCUSED: C.SUNILKUMAR, FORMERLY L.D.CLERK, P.H.CENTRE, THANNITHODE, NOW RESIDING AT VRINDALAYAM, SOORANAD, KOLLAM. BY ADV. SRI.S.MOHANDAS RESPONDENT/RESPONDENT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011 ALONG WITH CRA NO.564 OF 2002 CRA NO.565 OF 2002 AND CRA NO. 566 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------------------------- Crl.A.Nos.563, 564, 565 & 566 of 2002 ---------------------------------------------------------- COMMON JUDGMENT Appellant was Upper Division Clerk, working in Primary Health Centre, Thannithode of Pathanamthitta District during 1992-93. He was the second accused in C.C.Nos.64/2000 to 68/2000. First accused was the then Medical Officer of the Primary Health Centre, who was also the Drawing and Disbursing Officer. First accused was acquitted in all the cases. Appellant was acquitted in C.C. No.65/2000. He was convicted and sentenced for the offences under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act in all the other four cases. He was also convicted and sentenced for the offence under Section 477A of Indian Penal Code in C.C.No.68/2000. He was acquitted of other charges in C.C.Nos.64/2000, 66/2000, 67/2000 and 68/2000. These appeals are filed challenging the conviction and sentence. CRA 563/02 & con. cases 2 2. Crl.A.No.563/2002 is filed challenging the conviction and sentence in C.C.No.66/2000, Crl.A.No.564/2002 challenging the conviction and sentence in C.C.No.64/2000, Crl.A.No.565/2002 challenging the conviction and sentence in C.C.No.68/2000 and Crl.A.No.566/2002 challenging the conviction and sentence in C.C.No.67/2000. 3. First accused, the Medical Officer, was the Drawing and Disbursing Officer, being the head of the Institution. Appellant was the only Clerk in that office. It was admittedly his duty to maintain registers and prepare the salary bills, GPF advance bills and various other bills and get the signature of the first accused and present them before the Treasury, receive the amount and disburse the same. 4. Prosecution case in Crl.A.No.563/2002 (C.C.No. 66/2000) is that appellant, as per the practice, prepared a leave surrender bill for Rs.1,605/- on 7.1.1993, a bill for Rs.879/- on 4.3.1992 and a bill for Rs.1,879/- on 6.7.1993, drawing a total sum of Rs.4,362/-, though he was drawing a CRA 563/02 & con. cases 3 salary of only Rs.2,278/- and thereby he received Rs.2,084/- in excess of the eligible leave salary. It was alleged that appellant, with intention to commit criminal misappropriation, prepared the bills claiming excessive amounts and first accused wilfully conspired with the appellant and falsified the account relating to the surrender of earned leave. In Crl.A.No.564/2002 (C.C.No.64/2000), prosecution case is that though there was no sufficient amount in his GPF account, appellant prepared a GPF temporary advance bill for Rs.4,500/- on 2.6.1992, a bill for Rs.5,000/- on 20.11.1992 and a bill for Rs.5,000/- on 5.5.1993 and got them signed by the first accused and on presentation before the Treasury, got the bills passed and misappropriated the amounts. In Crl.A.No.565/2002 (C.C. No.68/2000), prosecution case is that though there was no employee by name Shahida and Ammukutty, appellant prepared bills in the names of those fictitious persons for Rs.3,206/- on 11.8.1993, being the salary for the month of July 1993 and for Rs.3,206/- on 25.8.1993, being the salary CRA 563/02 & con. cases 4 for the month of August 1993 and got them signed by the first accused and presented them before the Treasury and received the amount and altogether misappropriated a sum of Rs.6,412/-. In Crl.A.No.566/2002 (C.C.No.67/2000), prosecution case is that appellant prepared salary bills for the months of May, July and August 1993 and got them signed by the first accused, including an excess claim of Rs.1,617/- on 11.6.1993, being the salary for the month of May 1993, Rs.1,192/- on 11.8.1993, for the month of July 1993 and Rs.715/- on 25.8.1993, being the salary for the month of August 1993 and thus, misappropriated a total sum of Rs.3,524/-. 5. Though prosecution case was that appellant and first accused conspired together and prepared the bills and misappropriated the amounts, learned Special Judge, on the evidence, found that first accused, being the doctor, was only signing the bills, though he was the Drawing and Disbursing Officer and there is no conclusive evidence to prove that there was criminal conspiracy with the appellant CRA 563/02 & con. cases 5 in preparing the bills, including excess amounts or fictitious claims or ineligible amounts and jointly misappropriated the same. Holding that there is no conclusive evidence against the first accused, he was acquitted. Only appellant, the second accused, was convicted and sentenced finding that it was the appellant who prepared the disputed bills containing either excess claim or ineligible claim, received the amounts from the Treasury and misappropriated the same. 6. Learned Special Judge framed charge for the offences under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and Sections 420 and 477A read with Section 120B of Indian Penal Code. Appellant pleaded not guilty. So also, the first accused. Learned Special Judge tried all the five cases together as first accused filed Crl.M.P.No.1066/2000 and appellant filed Crl.M.P.No.1143/2000 for joint trial and prosecution did not object to the prayer for joint trial, finding that original records, audit report and other account books to be proved CRA 563/02 & con. cases 6 in all the cases are one and the same and the five cases are closely connected. 7. Prosecution examined 20 witnesses and marked Exhibits P1 to P36. After closing the prosecution evidence and questioning the accused under Section 313 of Code of Criminal Procedure, accused were asked to adduce defence evidence. Appellant then examined DWs 1 and 2 and marked Exhibits D1 and D2. 8. On the evidence, learned Special Judge found the first accused not guilty and appellant guilty. He was convicted and sentenced to rigorous imprisonment for one year for the offence punishable under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act in C.C.Nos.64/2000, 66/2000, 67/2000 and 68/2000. He was also convicted and sentenced to rigorous imprisonment for six months for the offence under Section 477A of Indian Penal Code in C.C.No.68/2000. He was also sentenced to a fine of Rs.1,000/- in C.C.No.64/2000, a fine of Rs.2,000/- each in C.C.Nos.66/2000 and 67/2000 and a fine of CRA 563/02 & con. cases 7 Rs.5,000/- in C.C.No.68/2000 and in default, rigorous imprisonment for three months in C.C.No.64/2000, six months each in C.C.Nos.66/2000 and 67/2000 and one year in C.C.No.68/2000. 9. Appellant would contend that he did not commit any offence and learned Special Judge should have found that during the relevant time, appellant was suffering from psychotic disorder and was under the treatment of DW1 and the sanctioning authority had granted leave and was aware of his illness and in such circumstances, it should have been found that there was no mens ria to commit any offence warranting conviction and therefore, the conviction is not sustainable. 10. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. 11. Learned counsel appearing for the appellant submitted that the fact that appellant was preparing the establishment and salary bills of Primary Health Centre, Thannithode and it was the first accused, being the Drawing CRA 563/02 & con. cases 8 and Disbursing Officer, who was signing the bills prepared by the appellant and appellant prepared all the disputed bills and got them signed by the first accused, presented them before the Treasury and encashed the same as found by the learned Special Judge, based on the evidence on record, are not disputed. Learned counsel submitted that appellant had specifically contended before the learned Special Judge that he was suffering from mental illness and was under the treatment of DW1 Dr.Cheriyan Mathew and in support of his illness, appellant got produced Exhibit D1 file showing the details of the treatment and also examined DW2 and produced Exhibit D2 certificate issued by DW2 and on the evidence, learned Special Judge should have found that appellant had no mens ria either to falsify the accounts or to prepare any false bills or misappropriate the amounts received by presenting those bills and in such circumstances, the conviction is not sustainable. Learned counsel finally submitted that as appellant was suffering from mental illness, even if the conviction is to be upheld, CRA 563/02 & con. cases 9 sentence is to be modified and in any case, the default sentence is to be avoided as appellant hails from a down trodden community and is not having any income and if the default sentence is to be imposed, he has to be in jail. 12. Learned Public Prosecutor submitted that learned Special Judge elaborately considered each and every item of evidence and rightly found that appellant committed the offences and appellant did not prove any mental illness and there is no reason to interfere with the conviction or the sentence. 13. Exhibit P2, the Treasury Bill Book, issued to Primary Health Centre, Thannithode, shows that as seen in Exhibit P2(a) entry, Rs.4,500/- was drawn as GPF advance by the appellant on 2.6.1992. Exhibit P3(a) entry in Exhibit P3 register of office copy of the bills corroborates the said withdrawal. Exhibit P4(a) entry in Exhibit P4 cash book maintained by the appellant in the Primary Health Centre shows that Rs.4,500/- was received by the appellant from the Treasury. Exhibit P5(a) entry in Exhibit P5 acquittance CRA 563/02 & con. cases 10 register also establishes the same. All these entries are in the handwritings of the appellant as well as his signatures therein were not disputed. Exhibit P9 is the order sanctioning GPF advance, signed by the first accused. Evidence establish that the said order was also prepared by the appellant and signed by the sanctioning authority, the first accused. Exhibit P2(a) entry in Exhibit P2 Treasury Bill Book shows that Rs.5,000/- was received by the appellant as GPF temporary advance on 20.11.1992. Exhibit P3(b) is the corresponding entry in Exhibit P3 register of office copy of the bills and Exhibit P4(b) is the entry in Exhibit P4 cash book and Exhibit P3(b) is the relevant entry regarding receipt of the amount under Exhibit P2(b) entry in the Treasury Bill Book. Exhibit P6(a) entry in Exhibit P6 acquittance register establishes receipt of the amount by the appellant. Exhibit P10 is the order sanctioning GPF advance, prepared by the appellant. Exhibit P7(a) is the relevant entry corresponding to Exhibit P2(b) entry. Exhibit P7 is the Payment Advance Register of Sub Treasury, Konni. CRA 563/02 & con. cases 11 As rightly found by the learned Special Judge, Exhibits P2 (b), P3(b), P4(b), P6(a) and P7(a) entries conclusively prove that Rs.5,000/- was received by the appellant as GPF temporary advance based on the bill prepared by him after getting an order sanctioning the GPF advance by the first accused. Exhibit P2(c) entry in Exhibit P2 Treasury Bill Book shows that Rs.5,000/- was drawn on 16.2.1993. Exhibit P4(c) entry in the cash book shows receipt of the amount drawn under Exhibit P2(c) entered on 16.2.1993. Exhibit P6 (b) entry in the acquittance register establishes that the said amount was received by the appellant on 16.2.1993. Evidence, therefore, establish that appellant received GPF temporary advance of Rs.4,500/-, Rs.5,000/- and Rs.5,000/- respectively on 2.6.1992, 20.11.1992 and 5.5.1993, as contended by the prosecution in C.C.No.64/2000. 14. Evidence of PW1 conclusively prove that there was no sufficient amount in the account of the appellant when the respective GPF temporary advances were drawn on 2.6.1992, 20.11.1992 and 5.5.1993 and the orders CRA 563/02 & con. cases 12 sanctioning them were in violation of Rule 16(2)(ii) of GPF (Kerala) Rules, as the period for withdrawal of next temporary advance did not expire when the temporary advance was applied and allowed. Exhibits P9 to P11 orders sanctioning temporary advance amounts show that on 25.5.1992, the credit in the PF account of the appellant was Rs.8,201/- and Rs.6,000/- has to be paid as balance of previous advance on that date. Therefore, including Rs.4,500/- sanctioned on 2.6.1992, the total withdrawal would come to Rs.10,500/-. That much amount was not there in his account. Similarly, Exhibit P20(a) sanction order signed by the first accused shows that the consolidated advance taken by the appellant, including the amount covered by Exhibit P20(a) was Rs.7,200/-. It shows the balance at his credit as on 11.11.1991 was Rs.4,894/-. Though, in Column No.8 of Exhibit P9, credit was shown as Rs.8,201/-, learned Special Judge rightly found that there is no evidence to prove that appellant had repaid the advance already taken by instalments, which had to be paid at the CRA 563/02 & con. cases 13 rate of Rs.200/- per month, in addition to the monthly contribution of Rs.100/-. Even if it is to be presumed that they were paid for six months, the amount so paid would come only to Rs.1,800/-. If it was added to the available balance as on 11.11.1991, it would come to Rs.8,201/-. If so, as shown in Exhibit P9, the previous balance cannot be Rs.6,000/-, as shown in Column No.9. Therefore, it is clear that withdrawal of the temporary advance, in excess of the eligible amount, cannot be done due to non-receipt of the statement regarding the balance in the GPF Credit Card from the Accountant General. It is clearly the result of the dishonest intention to withdraw excess ineligible amount. 15. Evidence of PW15 with Exhibits P27(a)(i) and P27 (a)(ii) establish that appellant had drawn a temporary advance on 12.9.1991 and inclusive of Rs.2,200/-, which was received as temporary advance earlier, the consolidated GPF advance was Rs.7,200/-. It has to be repaid in equal monthly instalments of Rs.300/-. It is, thus, clear that before appellant joined the Primary Health Centre, Thannithode, CRA 563/02 & con. cases 14 he had already withdrawn a sum of Rs.7,200/- as GPF temporary advance and suppressing that fact, in Exhibit P9 sanction order, false details were furnished. Exhibit P10 sanction order, relating to the bill sanctioned under Exhibit P2(b) on 20.11.1992, shows that balance at the credit of the appellant was Rs.7,280/-. Though Exhibit P3 register of office copy of the bills maintained at the Primary Health Centre shows that there was recovery of Rs.100/- towards GPF contribution and Rs.300/- towards repayment of the temporary GPF advance received, for the month of June 1992, there was no such entry in the subsequent months. If that be so, entry that there was credit of Rs.7,280/-, as shown in Exhibit P10, cannot be true. The previous advance amount of Rs.4,500/- sanctioned under Exhibit P9 and admittedly received by the appellant was not shown in Exhibit P10. As rightly found by the learned Special judge, it can only be found that said withdrawal was suppressed. Though in Exhibit P10 the consolidated amount to be recovered is shown as Rs.5,000/-, more amount was to be CRA 563/02 & con. cases 15 recovered when Exhibit P9 sanction order was passed as already found, because, Rs.4,500/- was sanctioned and received by the appellant in June 1992. Hence, the consolidated balance shown as Rs.5,000/- can never be true. Exhibit P11 sanction order for Rs.5,000/-, drawn on 5.5.1993, shows the balance outstanding in his credit at that time was Rs.6,852/-. Exhibit P3 shows that appellant has paid the subscription. But it does not show that instalments of GPF temporary advance availed of earlier were paid. It is thus clear that when Exhibit P11 sanction order was passed based on the application submitted by the appellant showing false details and the sanction order was prepared by the appellant based on the false statements and got it sanctioned by the first accused and withdrawn the amount on 5.5.1993, he was not entitled to get the said GPF advance at that time. 16. Learned Special Judge, based on the evidence, rightly found that appellant prepared the sanction orders and got them sanctioned by the first accused and thereafter CRA 563/02 & con. cases 16 he prepared the bills and got them signed by the first accused and withdrawn the amounts from the Treasury and he received them after showing in the acquittance register. Appellant, thereby, misusing his official position, obtained undue pecuniary advantage to that extent. 17. Prosecution case in C.C.No.66/2000 is that appellant prepared his leave surrender bills, including excess claim. It is the case that though he is eligible for Rs.2,278/-, he has withdrawn Rs.4,362/- and thereby obtained undue pecuniary advantage to the extent of Rs.2,084/-. It is the case that on 7.1.1993, a leave salary bill for Rs.1,605/-, on 4.3.1993, a bill for Rs.879/- and on 6.7.1993, a bill for Rs.1,878/- were prepared and got them signed by the first accused. Exhibit P15 is the service book of the appellant. Exhibit P15(a) entry in the service book shows that he surrendered 28 days earned leave and had drawn the leave salary for those days. The bill book shows that though such an entry was made in the service book, there was no surrender of leave for 28 days on 16.12.1992. CRA 563/02 & con. cases 17 He had surrendered ten days earned leave on 18.2.1992 and the remaining earned leave at his credit was 7/11, as is clear from Exhibit P15(a) entry. From 18.2.1992 to 4.7.1993, the total leave that could be earned by him was only 41 and 5/11 days. Taking into account the earlier earned leave available, the total earned leave at his credit would come to only 42 and 1/11 days. On 7.1.1993 and 4.3.1993, though earned leaves were surrendered and bills were prepared and encashed, surrender of those earned leaves are not deducted from the credit as is clear from the service book. The service book only shows that he surrendered thirty days earned leave on 5.7.1993. Exhibit P4(f) entry in Exhibit P4 cash book shows that Rs.4,885/- was received towards surrender of earned leave, which are due to the appellant, Haridasan and Eliyamma. The amount shown as drawn for the appellant is Rs.1,605/-. Particulars of the leave surrender due to Haridasan and Eliyamma are not shown in Exhibit P4(f) entry. Exhibit P3(d) entry in Exhibit P3 shows that on 4.3.1993, appellant surrendered CRA 563/02 & con. cases 18 fifteen days earned leave and claimed Rs.879/-. Exhibit P4 (g) is the corresponding entry in the cash book. Exhibit P6 (d) is the entry in the acquittance register proving that appellant received the said amount on 4.3.1993. Exhibit P2 (e), the relevant entry in Treasury Bill Book corroborates the same. Exhibit P6(e) entry in Exhibit P6 acquittance register establishes that appellant received Rs.1,878/-, being the surrender of earned leave for thirty days. Exhibit P6(f) is the stamped receipt given by the appellant. Exhibit P8(c), the relevant entry in the Treasury Bill Book also evidences payment of Rs.1,878/- from the Treasury. It is clear that on 5.7.1993 appellant had surrendered thirty days earned leave and received Rs.1,878/- and from 16.12.1992 to 5.7.1993, he had surrendered seventy three days earned leave and encashed Rs.4,362/-. It is thus clear that as on 18.2.1992, earned leave at the credit of the appellant was only 7/11 days. He was on commuted leave for seven days from 1.5.1992. The total days, excluding the period of commuted leave, on which he worked was 316 CRA 563/02 & con. cases 19 days. The leave which he earned was only 28 and 8/11 days. If the previous balance is added, the total earned leave at his credit would come to only 29 and 4/11 days. If appellant had surrendered 28 days earned leave on 7.1.1993, the balance at his credit, as on 7.1.1993, would come to only 1 and 4/11 days. He was on commuted leave for eleven days from 16.2.1993. The next surrender was on 4.3.1993. The total earned leave at his credit, including the previous balance, would come to 5 and 5/11 days. He had surrendered sixteen days earned leave on 4.3.1993 and received Rs.879/-. It is thus clear that there was encashment of excess earned leave. From 3.5.1993 onwards, he was on commuted leave for twenty days. From 23.5.1993 onwards, he was on leave without allowance for nine days. As on 5.7.1993, as he surrendered earned leave on 6.7.1993, the earned leave at his credit, including the balance would be only 8 and 6/11 days. It is conclusively proved that he had surrendered thirty days earned leave and received Rs.1,878/-. It is also proved that as against the CRA 563/02 & con. cases 20 eligible amount of Rs.2,275/-, appellant received Rs.4,362/- and obtained undue pecuniary advantage to the extent of the excess amount as alleged by the prosecution in C.C. No.66/2000. 18. Prosecution case in C.C.No.67/2000 is that appellant received an excess amount of Rs.1,617/- as salary for the month of May 1993, drawn on 11.6.1993, Rs.1,192/- for the month of July 1993, drawn on 11.8.1993 and Rs.715/- for the month of August 1993, drawn on 25.8.1993, thus a total amount of Rs.3,524/-. Exhibit P3(f) entry in the office copy of the establishment pay bill for the month of May 1993, shows that he claimed a gross monthly salary of Rs.1,878/- and Rs.100/- was deducted towards GPF subscription, Rs.30/- towards State Life Insurance and Rs.20/- towards Postal Life Insurance. Thus, he claimed a net salary of Rs.1,728/-. The original bill presented on 7.6.1993 was objected and it was re-presented on 10.6.1993. It was admittedly prepared by the appellant and signed by the first accused. Appellant collected the amount. CRA 563/02 & con. cases 21 Exhibit P4(i) is the entry regarding receipt of the amount in Exhibit P4 cash book. Exhibit P4(j) entry shows that Rs.3,439/- was disbursed and the balance amount was Rs.1,074/-. Admittedly, these are all in the handwriting of the appellant. It is conclusively proved that appellant was on commuted leave for twenty days from 3.5.1993 to 22.5.1993 and was on leave without allowance from 23.5.1993 to 31.5.1993. Thus, he is not entitled to claim the whole salary for that month, as he was on leave without allowance for nine days, on the last nine working days of that month. Exhibit P15 service book of the appellant also shows that he had already taken the entire half pay leave available to him and therefore, he could not have obtained commuted leave for twenty days. It is, therefore, conclusively proved that even though appellant was not entitled to the full salary for that month, he had prepared the bill, claiming an excess amount of Rs.1,617/- for the month of May 1993 and got it signed by the first accused and encashed from the Treasury and thereafter received it CRA 563/02 & con. cases 22 by showing in the acquittance register. 19. Exhibit P16(b) entry in the attendance register shows that in the month of July 1993, appellant had attended office only for three days. He was absent on all the other days. Still, appellant prepared a salary bill for the whole month and got it signed by the first accused. Exhibit P3(g) entry shows that when appellant prepared the bill for the month of July 1993, his net salary was Rs.1,878/-. The bill was for a total amount of Rs.6,056/-. It was encashed on 11.8.1993. Exhibit P6 acquittance register shows that Rs.6,056/-, which was received by the appellant from the Treasury, was disbursed to four persons, including appellant and appellant received Rs.1,478/- and issued the receipt. It is thus conclusively proved that though appellant was entitled to get salary only for six days for the month of July 1993, he received Rs.1,478/-, being the salary for the whole month. Thus, he has illegally obtained an excess amount of Rs.1,198/- for that month. CRA 563/02 & con. cases 23 20. Exhibit P16 attendance register would show that in August 1993, appellant was absent on eleven days. The salary bill for that month was drawn on 25.8.1993. The bill was prepared by