IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 CRL.A.No. 1322 of 2004() ------------------------ CC.10/1999 of SPL.COURT SPE/CBI-II, ERNAKULAM. .................... APPELLANT/ ACCUSED --------------------- C.RAJAMMA, EXTRA DEPARTMENTAL BRANCH POST MASTER, PERINGELIPURAM P.O. (W/O. KUNJUKUNJU, AGED 54, EDAYILATHARAYIL, THONNAKKAD P.O., CHERIYANAD, CHENGANNUR, ALAPPUZHA DISTRICT) BY ADV. SRI.C.HARIKRISHNAN SRI.P.RADHAKRISHNAN NAIR RESPONDENTS/ COMPLAINANT -------------------------- 1. THE INSPECTOR OF POLICE, CBI/SPE, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SC FOR CBI - P.CHANDRASEKHARAN PILLAI. ADV. SRI.S.SREEKUMAR, SC FOR CBI FOR R1 SRI P.CHANDRASEKHARAN PILLAI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 1322 OF 2004 = = = = = = = = = = = = DATED THIS, THE 1ST DAY OF JULY, 2011 J U D G M E N T Appellant is the accused in C.C. 10 of 1999 on the file of the Special Judge ( SPE/CBI) II, Ernakulam. PW.19, the Inspector of Police, CBI/SPE, Kochi Branch prosecuted the appellant alleging offence under Sections 409, 467 and 477(A) IPC and section 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as ‘the PC Act’). After trial, the learned Special Judge arrived at a finding against the appellant except for offence under section 13(2) r/w (i)(d) of PC Act. Consequently, she was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs. 1,000/- each under Sections 409 and 467 IPC. For offence under Section 477(A) IPC, she was sentenced to rigorous imprisonment for one year. For offence under Section 13(2) r/w 13(1)(c) of the PC act, she was sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000/-. Assailing the above conviction and sentence, this appeal was preferred. 2. The prosecution case in brief is that the appellant was working as an Extra Departmental Branch Post Master (EDBPM) in the Branch Post CRL.A. 1322/2004 2 Office at Peringalipuram coming under the Ennakkad Sub Post Office, which is under Mavelikkara Head Post Office, from 1979 to 1998. In the Branch Post Office, in addition to the postal service, there was service of Rural Post Life Insurance (RPLI) as well as Recurring Deposit (RD) and Time Deposit (TD). PW.8 Sreedevi had taken Rural Postal Life Insurance Policy. On 30.9.1996, she remitted a sum of Rs. 127/- for which Receipt No.22, from Book No. 25179, which was marked as Ext.P15(a), was issued. PW.9, Sivankutty Achari had also taken an Insurance Policy. PW.9 had been regularly remitting the premium; ofcourse not on a particular date. The appellant was a local resident. The evidence on record would show that PW.9 was remitting the premium by directly giving it to the appellant, sometimes on her way to the post office, some times while she returning home from the Post Office. The policy holders seldom insisted for regularly making entries in the pass book and for issuing receipts on the spot. Towards the remittance of four instalments of premium Ext.P16 receipt was issued to Pw.9. According to the prosecution, Ext.P16 is a false document created by making corrections in the duplicate/triplicate of Ext.P15(a). In other way, the appellant had forged receipts with the intention to deceive PW.9 for a sum of Rs. 676/- and falsified the accounts of the Post Office without crediting CRL.A. 1322/2004 3 the remittance and thus the appellant had committed criminal breach of trust and had misappropriated the said amount for her own use and thereby the above said offences were committed. That is the first count of charge. 3. The second count of charge is that towards premium remitted by PW.14, G. Soman, Receipt No. 15 from the same receipt book, which was marked as Ext.P15(b), was issued for Rs. 169/- on 30.9.1996. Later the duplicate/triplicate was forged and issued as receipt for Rs. 190/- remitted on 19.6.1997. Ext.P17 is the said receipt. That amount was also not credited in the accounts of the Post Office and was misappropriated. The third count is that Receipt No. 16 in the same book was issued to PW.15 Jayamol on 30.9.1996 for remitting Rs. 168/-. After forging the duplicate/triplicate it was issued as another receipt for remittance made by Pw.15 on 19.6.1997. The said amount was also not credited in the accounts of the Post Office and thereby committed criminal breach of trust and misconduct. The last count of charge is that PW.10 Janani Ammal had a term deposit with Account No. 67019 which was matured on 14.9.1997 and a sum of Rs. 20,840/- was due. Ext.P2 is the pass book. Out of that, Rs. 20,500/- was redeposited for another term. Instead of opening a new pass book, the appellant recorded in Ext.P2 itself as revised on 1.8.1997’ without crediting that amount to the accounts of the Post Office and thus CRL.A. 1322/2004 4 the said amount was misappropriated by the appellant. 4. While auditing the accounts of the Head Office, it was noticed that PW.10 had another term deposit with No. 67022. On maturity of the deposit Rs. 4,965/- was due and it was paid on 17.11.1992 and thereby the transaction was closed. Later, it was found that a sum of Rs. 166.5 was further due to Pw.10. That inspection note was brought to the notice of PW.1 who was the Ssub Post Master at Ennakkad in 1998. Pursuing the note obtained from the Head Office, PW.1 sent a letter dated 7.12.1998, copy of which was marked as Ext.P1 directing PW.10 to appear with the pass book and acknowledge the balance amount. Stating that the pass book in relation to Account No. 67022 was destroyed, PW.10 reported before PW.1 with Ext.P2 pass book. On verification of records, it was brought to the notice of PW.1 that the re-deposit of Rs. 20,500/- noted in Ext.P2 pass book was not credited to the accounts of the Post Office. PW.1 got Ext.P2 from PW.10 and the matter was reported to the higher authorities. The amount due to PW.10 as per the other term deposit was later paid to PW.10 on separate receipt. In pursuance to the report of PW.1 there was departmental enquiry in which the fraud was detected. Accordingly, Ext.P37 complaint dated 23.2.1997 was sent to the office of the C.B.I. On receipt of the same, PW.19 registered a case for which CRL.A. 1322/2004 5 Ext.P8 First Information Report was prepared for offences under Sections 409 and 477A IPC and Section 13(2) r/w 13(1)(c) and (d) of the PC Act. PW.19 took over the investigation and after completing the investigation, a final report accusing the appellant having committed the earlier said offences was submitted before the learned Special Judge. The learned Judge took cognizance and issued process responding to which the appellant entered appearance. After completing the procedures and hearing either side, charge was framed for the said offences. When read over and explained, the appellant pleaded not guilty. Hence she was sent for trial. 5. On the side of the prosecution, PWs 1 to 19 were examined and Exts.P1 to P16 were marked. During cross examination of PW.10, Ext. D1 was 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 official status; but she stated that she had discharged her duties without any default and irregularities. There were monthly as well as annual inspections and no irregularity or default was noticed. The policy holders were not remitting the premium regularly. The appellant had credited all the amounts she collected from the policy holders. Responding to the call to adduce defence evidence, Postal Superintendent, Alappuzha, was examined as DW.1 and Exts. D2 to D4 CRL.A. 1322/2004 6 were marked. DW.1 was mainly examined to bring on record that there were departmental proceedings as against PW1, PW3 and PW.17 and penalties were imposed on them. The learned Special Judge, on appraisal of the evidence, arrived at a conclusion of guilt consequent to which the impugned conviction and sentence were passed. 6. The fact that the appellant was the Branch Post Master at Peringelipuram Branch Post Office was proved by the testimony of PW.1, the Sub Post Master. PWs 2 and 3, two Postal Assistants, PW.4 Postal Sub Divisional Assistant, PWs 9, 10, PW.11, the Superintendent of Post Offices, and PW.17, the Post Master, Ennakkadu Sub Post Office had also given supporting evidence. PWs 12 and 13, two post men had given evidence that they had worked along with the appellant; but the status of the appellant was not deposed by PWs 12 and 13. The evidence of the above witnesses regarding the official status of the appellant as Branch Post Master of the Peringelipuram Branch Post Office was not assailed in cross examination. The learned counsel for the appellant submitted that he is not assailing the finding of the trial court on that aspect and does concede that the appellant was a public servant. PW.11, would also depose that he was the appointing and disciplinary authority of the appellant and that he had obtained the report of investigation with connected documents and after CRL.A. 1322/2004 7 verifying the documents he issued Ext.P43 order according sanction to prosecute the appellant. The validity of Ext.P13 was also not assailed by the learned counsel for the appellant. Therefore, concurring with the trial court, I find that the appellant was a public servant coming under Section 2 (c) of the PC Act and he was prosecuted with due sanction. 7. Ext.P16 is the forged receipt for Rs. 676/- said to have been issued to PW.8. The evidence of PW.3, the Postal Assistant would show that Ext.P16 is the duplicate/triplicate of Ext.P15(a) receipt dated 30.9.1996 issued to PW.8 Sreedevi for remitting a sum of Rs. 127/-. The duplicate/triplicate of Ext.P15(a) was forged and seen issued as receipt for Rs. 676/- to PW.9. Forging is evident by the document itself. Though PW.9 would depose that Ext.P16 is in the handwriting of the appellant and seen issued to him, his evidence does not contain any whisper that he had made a remittance of Rs. 676/- as shown in Ext.P16 or that it was issued to him. What he would depose is that the said receipt might have been given to the enquiry officer by his wife. PW.9 has no direct knowledge. The evidence on record, especially, the evidence of PW.19, does not disclose as to how Ext.P16 was received. The consistent evidence of PW.9 is that he had been remitting the policy at the rate of Rs. 169/- every month. Therefore, if the evidence of PW.9 is given reliance, he had not remitted CRL.A. 1322/2004 8 Rs. 676/- on any day and there was no occasion to issue a receipt like Ext.P16 for Rs. 676/-. The evidence of PW.3 would show that Ext.P14 statement was prepared by the appellant and was issued to the Sub Office from the Branch Office. Ext.P14 did not contain entry regarding the remittance of Rs. 676/- as evidenced by Ext.P16. The evidence of PW.9 would show that he joined the Rural Postal Life Insurance only in January, 1997. Ext. P36 is the pass book. According to PW.9, he had remitted 23 installments. But Ext.P36 contains remittance of only 22 instalments. There is no evidence on record to come to a conclusion that any of the 22 instalments recorded in Ext.P36 was not accounted. If Ext.P36 is given reliance, there was no omission on the side of the appellant for not recording the remittance of four instalments covered by Ext.P16. In the above circumstances and in the absence of evidence as to how the investigating officer got Ext.P16 and PW.9 having no case that it was issued to him, I find that regarding Ext.P16 the appellant is entitled to the benefit of reasonable doubt, though prima facie Ext.P16 appears to be a forged document. 8. Regarding the second count of charge, Ext.P15(b) is the receipt issued to PW.14 for remitting Rs. 169/- on 30.9.1996 towards the Life Insurance Policy. The duplicate/triplicate of Ext.P15(b) was forged by CRL.A. 1322/2004 9 putting the date '19.6.1997' and correcting the amount as Rs. 190/-. Ext.P17 is the forged receipt. It was issued to PW.14. A perusal of Exts.P15(b) and P17 would show that Ext.P17 is the forged duplicate/triplicate of Ext.P15(b). Ext.P46 is the pass book. Ext.P46 would show that it was maintained very casually. There are so many corrections and over writings. The remittance of policy for June, 1997 is not recorded on 19.6.1997. But remittance is recorded on 28.10.1997. According to PW.14, he took the policy in July, 1996 and had remitted up to August, 1998. Ext.P46 contains entry only up to May, 1998. Remittance of three instalments is not accounted. What was further revealed in the evidence of PW.14 is that when fraud was brought to light, appellant returned Rs. 500/- towards three instalments. The monthly instalment being Rs. 189/-, the amount said to have been paid back to PW.14 would be lesser than the amount for three instalments. The evidence of PW.3 would show that Ext.P17 is in the handwriting of the appellant. PWs12, 13,15 and 17 also had deposed that Ext.P17 is in the handwriting of the appellant. The evidence of PW.3 coupled with Ext.P14 would show that the remittance on 19.6.1997 for which Ext.P17 forged receipt was issued is not credited in the account. The above evidence remains unimpeached. The appellant could not bring any material to conclude that the amount covered by Ext.P17 was CRL.A. 1322/2004 10 accounted on the date of Ext.P17 or on any subsequent day. The evidence of PW.14 regarding the repayment of three instalments would show that it was made subsequent to the detection of fraud. It appears that apprehending severe consequences, the appellant had refunded Rs. 500/- which was not even credited in the pass book. On an anxious consideration of the evidence of PWs.3 and 14, coupled with Exts.P15 (b), P14, P17 and Ext.P46 I concur with the lower court and find that Ext.P17 receipt was issued, after forging and falsifying the duplicate/triplicate of Ext.P16, to PW.14 for remittance of a sum of Rs. 190 on 19.6.1997. That amount was not at all credited in the account of PW.14 in the statement sent to the Sub Post Office. But, entries were made in Ext.P46 on occasions to make it appear that the amount paid by PW.14 was duly accounted. There is no suggestion to PW.3 that Ext.P14 would show the remittance of the premium covered by Ext.P17 either on 19.6.1997 or on 28.10.1997 as recorded in Ext.P46 pass book. Therefore, I am persuaded to agree with the trial court and find that as regards Ext.P17 there is forgery and falsification of account; and without remitting that amount, the appellant had committed breach of trust and criminal misconduct. 9. The third count of allegation is regarding Receipt No. 16 of Book No. 25179 issued to PW.15. Ext.P29 was proved by PW.15 as the CRL.A. 1322/2004 11 receipt issued for Rs. 168/- on 30.9.1996. In Ext.P44 series the duplicate/triplicate of the same is seen with date corrected as 19.6.1997. The evidence of PW.15 would show that Ext.P47 is the pass book and the policy was started in July, 1996 and remittance was made from 31.8.1996 at the rate of Rs. 168/-. Pw.15 had also deposed that when the fraud was detected, the amount of three instalments were refunded to her. The evidence of PW.16 would show that he conducted a detailed enquiry and it was revealed that on verification of the records it was revealed that the remittance of one instalment by Pw.15 was not credited in the accounts. There is no case for the appellant that the amount covered by the forged receipt in Ext.P44 was anyway credited in the account of the appellant. The guilt of the appellant is evident by the fact that the appellant had later refunded three instalments to PW.15. Therefore, I concur with the findings of the trial court and find that this count of charge was also substantiated by the evidence on record. 10. The 4th count of charge is regarding the re-deposit of Rs. 20,500/- by PW.10 in term deposit. Ext.P2 pass book coupled with the evidence of PW.1 and PW.10 would show that PW.10 had term deposit with Account No.67019 which was matured on 14.7.1997. Rs. 20,840/- was the maturity amount. According to PW.10, Rs. 20,500/-, out of the matured CRL.A. 1322/2004 12 amount was re-deposited for which endorsement was made in Ext.P2. A look at Ext.P2 would show that there is such an endorsement. The evidence of PWs.3, 12,13, 15 and 17 would show that that endorsement is in the handwriting of the appellant. The appellant has no quarrel regarding that entry. But her case is that she had availed that much amount as loan and as a proof, such endorsement was made. Learned counsel for the appellant would rely upon Ext.P22 statement in support of the defence version. The evidence on record would show that Ext.P22 was recorded by PW.16 during the course of enquiry and at that time, PW.10 had stated that the said amount was given to the appellant as a loan. The evidence of PW.10 would show that after detecting the fraud, the appellant approached her and sought to save her and on apprehending that unless the appellant would lost her job PW.10 had given such statement. Learned counsel canvassed my attention to the evidence of PW.10 that within one or two months, the father of the appellant returned the amount. Of course, there is such a statement. Having carefully gone through the evidence of PW.10 coupled with Ext.P2, I find that PW.10 is a rustic witness and she had absolutely no idea about the date of repayment by the father of the appellant and the payment obviously appears to be after the detection of the fraud. PW.10 is consistent that there was no loan transaction. The contention of the appellant that the CRL.A. 1322/2004 13 said amount was taken by her as loan is not at all believable. In the event the appellant had taken such a loan, she should have given proper receipt and not to make entries in the pass book, of course relating to a closed account, under her signature and seal of the Post Office. Even the statement of the appellant would show that the said deposit was not credited to the account of the Post Office. Story of loan is a later invented defence. Therefore, the prosecution case that she forged and falsified Ext.P2 to make it appear that PW.10 had a re-deposit of Rs. 20,500/- and the said amount was appropriated by her stands proved. In such circumstances, I concur with the trial court and find that this count of charge also stands substantiated by the evidence on record. 11. For the reasons stated earlier, though I find that the appellant is entitled to the benefit of doubt regarding the first count of charge, the conviction relating to the second, third and fourth counts of charge is based upon cogent evidence and therefore, requires no interference. 12. The learned counsel for the appellant submitted that the appellant belongs to a very poor family in the lower strata of the society and her salary was a little more than Rs. 1,000/- and that all other members of the family are coolies and that she had been facing the trauma of CRL.A. 1322/2004 14 prosecution for the last twelve years. It was also submitted that the husband of the appellant is a heart patient and that her only son is genetically disabled and is continuously undergoing treatment Therefore, the learned counsel sought for leniency in sentence ; ie to deviate from the minimum sentence under Section 13 (2) of the PC Act. Learned counsel for the respondent has not disputed the family circumstances of the appellant stated by the learned counsel. In the above circumstances, I find that there are sufficient reasons including gender consideration for deviating from the minimum sentence prescribed under Section 13(2) of the PC Act and that a sentence of imprisonment till the rising of the court with a fine of Rs. 50,000 /- each under Section 409 and 13(2) r/w Section 13(1) (c) would meet the ends of justice. In the result, while upholding the conviction, the substantive sentence is reduced to imprisonment till the rising of the court on all counts and a fine of Rs. 50,000/- each under Section 409 IPC, and 13(2) r/w 13(1)(c) of the PC Act. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of one year. The trial court shall see the execution of the sentence and report compliance. P.S. GOPINATHAN, (JUDGE) knc/-