IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 480 of 2003(C) ------------------------------------------------- CRA.87/2001 of III ADDL. SESSIONS COURT (ADHOC-I), THRISSUR CC.233/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ANANDAN, S/O. MULAYAMKUDATH KUNHAPPU, ERANELLUR VILLAGE, MAZHUVANJERY DESOM. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS/COMPLAINANT/STATE: 1. CIRCLE INSPECTOR OF POLICE, KUNNAMKULAM. 2. STATE- REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 1691/2003 IN CRRP 480/2003 DISMISSED 19.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.480 of 2003 -------------------------- ORDER Revision petitioner, who was a Cashier in Kerala State Electricity Board, was convicted and sentenced for the offence under Section 409 of Indian Penal Code by Judicial first Class Magistrate, Kunnamkulam in C.C.No.233/1996. The conviction and sentence was confirmed by Additional Sessions Judge, Thrissur in Crl.A.No.87/2001. This revision is filed challenging the conviction and sentence. 2. Prosecution case is that while petitioner was working as the Cashier in Mundur Office of Kerala State Electricity Board, he was in charge of collecting electricity charges from industrial consumers. With the intention to commit criminal breach of trust, petitioner collected electricity charges from Consumer Nos.3094, 4756 and 3963 for the months of June 1995 and July 1995, but did not CRRP 480/03 2 remit the amount in the Bank, which he should have done and misappropriated the same for his own use and thereby committed the offence. Petitioner pleaded not guilty. 3. Prosecution examined 21 witnesses and marked 42 exhibits. Petitioner did not adduce any evidence. 4. Learned Magistrate, on the evidence, found the petitioner guilty of the offence, accepting the prosecution case that petitioner was collecting amounts due to Kerala State Electricity Board from industrial consumers and he collected amounts covered by Exhibits P3, P6, P8 and P9 bills, but did not account the same and did not remit the amount in the Bank and he, thereby, dishonestly misappropriated the amount. He was convicted and sentenced to rigorous imprisonment for a period of two years. Learned Additional Sessions Judge also, on re-appreciation of evidence, confirmed the conviction and sentence. CRRP 480/03 3 5. Argument of the learned counsel appearing for the revision petitioner is that there is no evidence to prove the entrustment of the amount with the petitioner. It was argued that there are two Cashiers and PW20 was one of the Cashiers at the relevant time. Exhibits P36 to P38 demand statements, though contained entries relating to the disputed payments, it is not proved that they are in the handwriting of the petitioner and none of the consumers had given evidence that they entrusted the amount to the petitioner and in such circumstances, courts below should have found that prosecution did not establish the entrustment. It is also argued that though, under Exhibits P29 and P30, petitioner remitted the amount, that will not amount to an admission of entrustment or guilt, even if it is taken that the amount was remitted by the petitioner, which, in fact, was disputed before the trial court. Learned counsel also argued that there is no evidence to prove that petitioner had CRRP 480/03 4 any dishonest intention to misappropriate the amount and the rules and procedures provided for collecting the penal interest and considering the period of thirty days for deposing the amount, even if there was an omission to deposit the amount immediately, it will not amount to commission of an offence under Section 409 of Indian Penal Code. It was argued that on 31.8.1995, 1.9.1995 and 2.9.1995 petitioner was on leave and 3.9.1995 was a Sunday. On 4.9.1995 when petitioner attended the office, as directed by PW1, the shortage found was remitted, though it was not personally done by the petitioner, but from the cash available in the cash chest. It is, therefore, argued that conviction is not sustainable. Learned counsel relied on the decisions of the Apex Court in L.Chandraiah v. State of A.P. ((2003) 12 SCC 670), Kailash Kumar Sanwatia v. State of Bihar ((2003) 7 SCC 399) and Jiwan Dass v. State of Haryana ((1999) 2 SCC 530) in support of his argument. CRRP 480/03 5 6. Learned Public Prosecutor pointed out that evidence establish that it was only the petitioner who was collecting the electricity charges from industrial consumers and the disputed payments are all made by industrial consumers. Evidence also establish that on receipt of the amount, an entry is to be made in the demand statement and thereafter, it has to be shown in SOP-VI register, which is the cash book and only thereafter, the pre-written receipts are to be issued to the consumers. Though pre-written receipts were issued and entries were made in the demand statement, the payments were not shown in SOP-VI register and the amount was not remitted in the Bank. As the payments were not shown in SOP-VI register, misappropriation could not be found out, except on a physical verification with the entries in the demand statements and in such circumstances, the dishonest intention of the petitioner to misappropriate the amount collected is established. CRRP 480/03 6 Learned Public Prosecutor relied on the decision of the Apex Court in Vishwa Nath v. State of J. & K. (AIR 1983 SC 174) and argued that subsequent payment of money, which was misappropriated by a public servant, will not absolve him of the liability and therefore, on the ground that under Exhibits P29 and P30, the amount was subsequently remitted, petitioner is not entitled to contend that he has not committed the offence. 7. Exhibits P3, P6, P8 and P9 are the bills issued to Consumer Nos.3094, 4756 and 3963 respectively. The entry relating to receipt of the amount covered by Exhibits P3, P8 and P9 is shown in Exhibit P37 demand statement dated 31.7.1995. The payment of Exhibit P6 receipt is shown in Exhibit P38 demand statement dated 30.8.1995. Though evidence of PW2, the consumer, shows that remittance was, in fact, made by PW4, the evidence of PW4 does not show to whom the amount was actually entrusted. PW3, who remitted the amount CRRP 480/03 7 covered by Exhibit P6 bill also did not identify the person to whom the money was entrusted. Though Exhibits P8 and P9 bills are for Rs.1,874/- each for the months of June 1995 and July 1995 and they are in respect of the same consumer and those payments were seen made as per Exhibit P38 demand statement on 31.7.1995, the charge is only in respect of one receipt and not both the receipts, though prosecution has a case that the whole amount was not remitted. It is based on lack of evidence as to whom the money was entrusted, it was argued that entrustment is not proved. But, on the evidence, I cannot agree with the submission that entrustment with the petitioner is not established. 8. Exhibit P35 attendance register shows that petitioner and PW20 were the two Cashiers, who were there in the office during the second half of July and August 1995. Evidence of PW15 establishes that there was division of work among the Cashiers. It was brought out in cross-examination that the duty CRRP 480/03 8 to collect electricity charges from industrial consumers was entrusted exclusively with the petitioner. This aspect was not disputed. Amounts covered under Exhibits P3, P6, P8 and P9 bills are all payments by industrial consumers. Though PW20 deposed that when one Cashier is on leave the other Cashier will receive the amount, there was no case that petitioner was absent either on 31.7.1995 or on 30.8.1995. Therefore, if payments covered under Exhibits P3, P6, P8 and P9 bills were received, it could only be by the petitioner. The procedure to collect the amount is spoken to by PWs 15, 19 and 20. Though there is some disparity in the evidence of PWs 15 and 19, it is clear that demand statements are prepared in advance and when a consumer approaches the office for remitting the amount under a demand invoice served on him, the concerned Clerk has to make an entry in the demand statement and along with the receipt, the consumer will be sent to the Cashier and the Cashier will CRRP 480/03 9 receive the amount and make an entry in the demand statement and in SOP-VI register and thereafter issue the pre-written receipt. Exhibits P37 and P38 demand statements show that the amounts covered by Exhibits P3, P6, P8 and P9 bills were received on 31.7.1995 and 30.8.1995 respectively. It is clear that the amounts were paid on those days. Though learned counsel argued that it need not necessarily be made on the dates shown in the demand register, there is no evidence in support of the case that the dates shown in the demand statement are not of the respective dates of payment. There is no case for the petitioner, even, when he was questioned under Section 313 of Code of Criminal Procedure or in the written statement submitted at that time, that the entry regarding the date in the demand statement was wrongly shown either intentionally or accidentally. In such circumstances, it can only be found that the payments covered by Exhibits P3, P6, P8 and P9 bills were made on 31.7.1995 and CRRP 480/03 10 30.8.1995. As stated earlier, as it is only the petitioner who collected electricity charges from industrial consumers as he is on duty and the payments are made by industrial consumers, as rightly found by the courts below, entrustment was with the petitioner. 9. The fact that the payments covered by Exhibits P3, P6, P8 and P9 bills were not shown in SOP-VI register, either on that day or on the subsequent day, is not disputed. It is also the admitted case that remittance to the Bank could only be with reference to the entries in SOP-VI register. It is also not disputed that the amounts covered by Exhibits P3, P6, P8 and P9 bills were not remitted in the Bank till it was remitted on 4.9.1995 under Exhibit P29 receipt, after PW15 had conducted an inspection and found the shortage. 10. Ingredients to prove an offence under Section 409 of Indian Penal Code are entrusting any person with property or with any dominion over CRRP 480/03 11 property and the person entrusted dishonestly misappropriating or converting it to his own use or dishonestly using or disposing of that property or wilfully suffering any other person so as to do in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made in discharge of such trust. It is to be established that accused is a public servant or banker or agent and was entrusted with the property of which he is duty bound to account for and he committed criminal breach of trust. The fact that petitioner is a public servant as provided under Section 21 of Indian Penal Code is not disputed. I have already found that evidence establish that the amount covered by Exhibits P3, P6, P8 and P9 bills were entrusted by the respective consumers with the petitioner, who is liable to account for the same. It is also established that petitioner had to show all payments received in the SOP-VI register and CRRP 480/03 12 shall also remit the amount in the Bank on the next day. Even though the amount covered by Exhibits P3, P6, P8 and P9 bills were received by the petitioner on 31.7.1995 and 30.8.1995, he did not remit the amount till 4.9.1995 and that too after the defect was found out. Even if it is taken that there is a provision for retaining the amount unintentionally for a period up to thirty days, petitioner cannot justify the non remittance beyond the period of one month. The question is whether for that reason it can be said that petitioner had a dishonest intention to misappropriate the amount. 11. Learned counsel, relying on the decision in Jiwan Dass's case (supra), argued that in the light of the decision of the Honourable Supreme Court, remittance under Exhibit P29 or the statement in Exhibit P30 with regard to the remittance, will not amount to an admission of misappropriation or a confession. The facts in Jiwan Dass's case is different. Though Jiwan Dass CRRP 480/03 13 had signed the receipts, evidence established that he signed the documents only in his capacity as the superior officer and entrustment of diesel was with the other accused Yadav. Though, in the letter addressed by Jiwan Dass, it was stated that he would make up the deficiency, the Honourable Supreme Court held that the said writing can neither be held to be a confession nor an admission of the guilt on the part of Jiwan Dass nor that can form the basis for convicting Jiwan Dass for an offence under Section 409 of Indian Penal Code. It is based on the finding that evidence conclusively establish that there was no entrustment with Jiwan Dass and instead, it was entrusted to the other accused Mittar Pal Yadav and Jiwan Dass was acquitted. That decision cannot be applied to the instant case, where payments were received by the petitioner on 31.7.1995 and 30.8.1995 and he did not remit the amount till the shortage was found out on physical verification by PW1. As rightly CRRP 480/03 14 pointed out by the learned Public Prosecutor, when a payment is received from a consumer, unless it is shown in the SOP register, which would be the only evidence in the office to show acceptance of the amount apart from the entry in the demand statement, it could not have been detected at a later stage unless physical verification is done with reference to each of the entries in the demand statement with reference to the SOP register. In such circumstances, either by the remittance under Exhibit P29 or the explanation that it was not intentionally omitted to be shown in the SOP register, it cannot be said that there was no dishonest intention on the part of the petitioner to misappropriate the amount. There may not be documentary evidence to find out a dishonest intention. It has to be proved only on the surrounding circumstances. On the evidence, it can only be found that petitioner had a dishonest intention to misappropriate the amount. CRRP 480/03 15 12. Though learned counsel relied on Chandraiah's case (supra), where the Honourable Supreme Court, on the facts, held that accused 1 and 2, the Sub Postmasters, may be guilty of negligence, but, cannot be imputed with a dishonest intention to misappropriate the amount and therefore, set aside their conviction, I cannot accept the argument that failure to show the payments, covered by Exhibits P3, P6, P8 and P9 bills, collected by the petitioner, was due to any negligence and without mens rea. On the facts and circumstances of the case, it can only be found that it was not an accidental omission due to any negligence but the result of the dishonest intention to misappropriate the amount. 13. The Honourable Supreme Court in Kailash Kumar's case (supra) held that mere loss of money by itself will not constitute a criminal breach of trust and if due to a fortuitous or intervening situation, a person, to whom money was entrusted, CRRP 480/03 16 is incapacitated from carrying out the job, that will not bring in application of Section 405 or Section 409 of Indian Penal Code, unless misappropriation or conversion to personal use or disposal of property is established. At best, it could be made applicable to the payment covered under Exhibit P6. But, when the remittance and misappropriation of payments under Exhibits P3, P8 and P9 bills is appreciated in the background of the modus operandi adopted by the petitioner, it cannot be said that it was due to any fortuitous or intervening situation, petitioner failed to deposit that amount as he should have done. In such circumstances, I find no reason to interfere with the conviction of the petitioner for the offence under Section 409 of Indian Penal Code. 14. Then the only question is regarding the sentence. Argument of the learned counsel is that service of the petitioner in Kerala State Electricity Board was terminated and he is now aged CRRP 480/03 17 only 42 years and in such circumstances, leniency be shown. Petitioner, being a public servant, who misappropriated the amount collected from the consumers which should have been remitted to the Bank, is not entitled to any leniency either for the subsequent remittance, evidenced by Exhibit P29 or on the ground that his service has been terminated from Kerala State Electricity Board. In such circumstances, I find no reason to interfere with the sentence also. Revision fails and it is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate, Kunnamkulam on 27.08.2010. The Magistrate is directed to execute the sentence. 19th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 480/03 18 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.480 of 2003 -------------------------- ORDER 19th July, 2010