IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 CRL.A.No. 406 of 2000() ----------------------- (C.C.NO.6/98 OF THE ENQUIRY COMMISSIOENR AND SPECIAL JUDGE, THRISSUR. (V.C. 1/94 OF VACB, KOTTAYAM) APPELLANT(S): -------------- N.CNAHDRAN, FORMER BLOCK DEVELOPMENT OFFICER, UZHAVOOR, KOTTAYAM. BY ADV. M/S P.SANTHOSH KUMAR (PANAMPALLI NAGAR) & PIRAPPANCODE V.S.SUDHEER. RESPONDENT(S): --------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM, (DEPUTY SUPERINTENDENT OF POLICE, VACB, KOTTAYAM). ADV. PUBLIC PROSECUTOR SRI P.N.SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON 17/02/2009 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.406 of 2000 ---------------------------------------------- Dated 17th February, 2009. JUDGMENT The sole accused in C.C.No.6 of 1998 on the file of the court of the Enquiry Commissioner & Special Judge,Thrissur is the appellant who challenge the judgment dated 24.6.2000 of the above court by which he is convicted and sentenced under sections 13(1)(c) and (d) read with Sec.13(2) of the Prevention of Corruption Act, 1988 (for short, 'the P.C. Act') and under sections 409, and 477A of the Indian Penal Code. 2. The prosecution case is that while the accused was working as Block Development Officer at Uzhavoor, during the period 5.4.90 to 11.9.91, abused the official position as such public servant and deposited Rs.58419/- being the final work bill amount drawn from the Sub Treasury, Uzhavoor on 22.2.91 in S.B account No. B4461 of State Bank of Travancore, Uzhavoor without any authorisation opened by the accused and paid back Rs.47426/- to PW1 who was the convener of the work for which the final bill was drawn vide C.B.50/90-91 of the Block Development Office, Uzhavoor and obtained from PW1 undated receipt for the full amount of Rs.58419/- even though the payment was only Rs.47426/- and thus misappropriated Rs.10993/- and obtained undue pecuniary advantage to that extent by corrupt or illegal means Crl.A.406/2000 -:2:- and without any public interest and the overt act done with dishonest or fraudulent intention and thereby committed the offences alleged. 3. On the basis of the said allegation, a case as V.C.1/94 of VACB, Kottayam was registered as per Ext.P22 F.I.R. for the said offences. After the investigation, charge sheet was laid in the trial court upon which the court took cognizance on 12.6.98. On appearance of the accused, after hearing the prosecution as well as the accused, a formal charge was framed for the offences punishable under sections 13(1)(c) and 13(1) (d) read with Section 13(2) of the P.C.Act, 1988 and under sections 409, 468, 471 and 477A of the Indian Penal Code, which read over and explained to the accused and he pleaded not guilty. Thereafter, the prosecution adduced evidence consists of the oral testimony of PWs 1 to 11 and the documentary evidence such as Exts.P1 to P31. No evidence is adduced, either oral or documentary, from the side of the defence. The defence took a stand to the effect that there was no dishonest intention at all and it was under the oral sanction of the DRDA and the District Collector, the amount was remitted in the bank by the accused. It was also contended that PW1 had filed the complaint at the instance of the Panchayat President with whom the accused was on loggerheads. It was also the case of the defence that Ext.P2(b) receipt was issued by PW1 after satisfying Crl.A.406/2000 -:3:- the full amount. It was also contended that there was no loss to the Panchayat or the Government and the amount was already realised. It is also the case of the defence that as there was monetary transaction between PW1 and the accused and in the light of Ext.P2(b) receipt, it cannot be said that the accused had misappropriated any amount. On the basis of the rival pleadings and the materials on record, the court below formulated 7 issues for its consideration. Finally, the court found that the accused is guilty under section 13(1)(c) and (d) read with Sec.13(2) of P.C.Act 1988 and under sections 409 and 477A of IPC. On finding guilty of the appellant/accused for the above offences, after hearing him on the question of sentence, he is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.40,000/- and ,in default, to undergo simple imprisonment for one year under section 13(1)(c) read with Sec.13(2) of the P.C.Act,1988. No separate sentence was awarded under sections 13(1)(d) read with 13(2) of the Act. The accused was also directed to undergo rigorous imprisonment for 4 years under section 409 IPC and rigorous imprisonment for 2 years under section 477A IPC. The substantive sentences of imprisonment was ordered to run concurrently. Set off was allowed under section 428 Cr.P.C. The accused was acquitted of the charges under sections 468 and 471 IPC. It is the above finding Crl.A.406/2000 -:4:- and order of conviction and sentence challenged in this appeal. 4. I have heard Sri Pirappancode V.S. Sudheer, the learned counsel appearing for the appellant,and also Sri P.N.Sukumaran, the learned Public Prosecutor. I have also perused the evidence and materials on record. 5. PW1 was the convener of the different works at Ramapuram Panchayat in Uzhavoor Block. He was also the convener of Velakkattkunnu Chakkampuzha road work. Connected with the above work, he was paid in advance a sum of Rs.15,000/- and 10 M.T wheat. That work was subsequently abandoned by the department and Rs.15,000/- and Rs.21400/- being the value of 10 metric tonne wheat given as advance were directed to be paid back from PW1. So PW1 submitted an application before the B.D. office, Uzhavoor to permit him to reimburse the amount in two instalments. That application was allowed and he was directed to execute an agreement undertaking to pay 10,700/- each in two instalments by way of recovery from the final bill. Thus, Rs.10700/- was recovered from PW1. The other instalment of Rs.10700/- was recovered from the bill for the work of Manakkad Mattom portion of the bund. Against this recovery, PW1 preferred an application before the B.D.Office, as according to him, from the work Arayanikkal Pulikkapadavu road, he had received a Crl.A.406/2000 -:5:- cheque for Rs.47426/- even though the final bill amount was for Rs.58126/-and the value of gunny bag Rs.293. The cheque for Rs.47426/- was issued to the S.B.T, Uzhavoor branch and it was from there the encashment was made. Thus, according to PW1, Rs.10700/- was withheld payment at the time of the said transaction. Subsequently, from the work of the bund, Rs.10,700/- was recovered. In the light of the earlier recovery of Rs.10,700/-, PW1 submitted that, thus he was forced to make a complaint. Thus according to PW1, the accused had undertaken to pay Rs.10700/- and Rs.293/- being the value of gunny bags at the DRDA office, Kottayam and undertook to produce the receipt before PW1. Even though the amount was recovered from the final bill of Rs.58419/-, that amount was not paid to the DRDA and, on the other hand, Rs.10700/- was recovered from the bill for another work. It was thus PW1 adduced evidence and he had made the complaint. But PW1 turned hostile to the prosecution. 6. The other evidence is that of PW2 through whom Ext.P7 sanction was proved. PW3 was the manager of the S.B.T. He proved the encashment of Ext.P5 cheque for Rs.47426/-. Another witness examined was PW4 who was the Project Officer of DRDA at the time. According to him, he had received a complaint from PW1 and he submitted Ext.P3(e) report and recorded the statement of PW1. Crl.A.406/2000 -:6:- According to him, vide Ext.P8(a), Rs.10,700/- was recovered from PW1 from the amount of the final bill for the work. From the first part of the bill, the first instalment of Rs.10,700/- was recovered. According to him, from the balance payment of the work, the accused was found not to have made the recovery and accordingly from the amount of the another work, Rs.10700/- was directed to be recovered. According to PW4, though the accused had already recovered Rs.10,700/-, he did not remit the amount with DRDA. Thus according to PW4, the accused opened a new account at the SBT, Uzhavoor branch and deposited the amount in that account and that account was opened without the specific direction of the Government or the District Collector. Thus, PW4 stated that D.D. for Rs.58419/- was remitted in the newly opened account in the S.B.T and after deducting Rs.10700/- being the instalment amount and Rs.293/- being the value of the gunny bags, the balance amount of Rs.47426/- alone was paid to PW1 as per Ext.P5 cheque. PW4 has also stated that regarding those transaction, no endorsement was made in the records kept in the office. 7. PW5 was the Sub Treasury officer at Uzhavoor and when he was examined, Ext.P10 was proved. Ext.P10 is the Appropriation Control Register. Ext.P11 was the register of expenditure. PW6 stated that on 21.2.91, as per the contingent bill the BDO had Crl.A.406/2000 -:7:- withdrawn Rs.58419/-. Ext.P10(a) proved through PW6 which would show the fund allotment and withdrawal pertaining to the J.R.Y work of the BDO, Uzhavoor. Ext.P11 is the relevant entry made vide Ext.P11(a). The manager of the S.B.T.Uzhavoor was examined as PW7. According to him, Ext.P13 cheque dated 21.2.91 for Rs.58419/- was encashed by the BDO as per Ext.P14 ledger extract of the same. PW.8 is the successor of the accused. According to him when he had taken charge from the accused, the accused did not hand over any document pertaining to A/c No. B4461 and the cheque book, pass book etc. Ext.P16 is the cash book retained at the B.D.Office. According to PW8, the cash balance was shown as Rs. 474/- when he took charge from the accused. The signature of both PW8 and the accused were affixed in Ext.P16. Further, PW5, during his deposition, gave details regarding the endorsement contained in Ext.P16 and P17. Ext.P21 is the register of valuables. PW9 was the officer who conducted preliminary enquiry and registered the crime and seized the document. PW10 is also another investigating officer. PW11 finally laid the charge. On the basis of the above materials, the trial court came into a conclusion that the accused has committed the offences. 8. The learned counsel appearing for the appellant vehemently argued that even going by the court charge, the only allegation Crl.A.406/2000 -:8:- against the accused is that he had misappropriated an amount of Rs.10993/- and there is no other serious allegations and materials to support the other sections of offences incorporated in the court charge. The learned counsel pointed out that the entire facts and circumstances involved in the case and the prosecution allegation have to be examined and scrutinized in the background of the particular defence taken by the accused in this case. According to the learned counsel, as revealed from section 313 Cr.P.C. statement of the accused, the accused had already admitted and it is the case of the accused that he is having several transactions with PW1 and it is based upon the direction and offer of PW1, the accused issued Ext.P5 cheque for an amount of Rs.47426/- as certain other amounts was due to the accused from PW1 and it was for the said reason PW1 issued Ext.P2(b) receipt acknowledging payment of the entire amount which was due to him as per the work undertaking by him. It is also argued by the learned counsel that subsequently, the second instalment which was due from PW1 was recovered and as such, neither the department nor the Government has sustained any loss. Thus, According to the learned counsel, absolutely there is no misappropriation of any amount of the department or the government and therefore, no offence under sections 3(1)(c) or 3(1) (d) read with Sec.13(2) of the P.C.Act or under sections Crl.A.406/2000 -:9:- 409, 477, etc are attracted against the accused and therefore the order of conviction and sentence are liable to be set aside. 9. Per contra, Sri P.N.Sukumaran, the learned Public Prosecutor submitted that as per the evidence on record, the prosecution has proved that without any authority, the accused had opened an account, viz, S.B.A/c No.B4461 in the S.B.T Uzhavoor branch and he fraudulently deposited the D.D.amount of Rs.58419/- which he had withdrawn from the treasury and out of the said amount, instead of reimbursement of the entire amount, he had issued a bearer cheque in favour of PW1, only for an amount of Rs.47426/- as per Ext.P1, and therefore he defrauded a sum of Rs.10700/- which he converted for his own use and thereby misappropriated the said amount. Thus, the learned Public Prosecutor strongly supporting the judgment of the trial court, submitted that no interference of this court is warranted. 10. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the learned Public Prosecutor. I have gone through the impugned judgment as well as the evidence and materials on record. 11. The crux of the prosecution allegation is that while the accused was working as Block Development Officer, Uzhavoor during the period from 5.4.1990 to 11.9.199, and as such being a public Crl.A.406/2000 -:10:- servant had by abusing his official position as such public servant deposited Rs.58419/-, being the final work bill amount drawn, from the Sub Treasury, Uzhavoor on 22.1.91 vide C.B.No.50/90-91 of BDO Uzhavoor, in S.B.A/c No.B4461 of S.B.T., Uzhavoor unauthorisedly opened by him and had paid only Rs.47426/- to PW1 but obtained undated receipt from him for the full amount of Rs.58419/- and had thus misappropriated Rs. 10993/- and obtained undue pecuniary advantage to that extent by the accused. Thus the accused had committed criminal misconduct which are the offences punishable under sections 13(1)(c) and (d) read with Section 13(2) of the P.C.Act 1988 and under sections 409, 468, 471 and 477A of IPC. I have already discussed the prosecution evidence. Going by such evidence, what can be concluded is that the accused withdrew an amount of Rs.58419/- from the Sub Treasury, Uzhavoor and deposited the same in S.B.A/c No. B 4461 of S.B.T, Uzhavoor which was opened by him unauthorizedly and he paid only Rs.47426/- to PW1, but obtained undated receipt from PW1 for full amount of Rs.58419/- being the bill amount for which PW1 is entitled. It is true that there is a difference of Rs.10,993/- on comparing the amount paid to PW1 with the amount deposited. According to the appellant/accused, and as supported by the evidence of PW1, there was frequent transactions between the accused and Crl.A.406/2000 -:11:- PW1 and as such, an amount of Rs.10,993/- was due to the appellant from PW1 and, thus, according to the settlement of the account among PW1 and the appellant/accused, PW1 permitted the appellant/accused to withhold the above amount of Rs.10993/- which is due to the appellant/accused from PW1 from the total amount of Rs.58419/-, the amount due to PW1 as per the final bill for the work of Arayanikkal Pulikkapadavu. When PW1 was examined, he deposed : Crl.A.406/2000 -:12:- PW1 continued and further said: Crl.A.406/2000 -:13:- According to PW4, the accused opened a new account in the SBT, Uzhavoor branch and deposited the amount which withdrew from the Treasury. Thus, the only allegation of PW4 is that the accused opened an account without specific direction or authority from the Government or the District Collector. Thus, According to PW4, the D.D. for Rs.58419/- was remitted in the newly opened account in the S.B.T and after deducting Rs.10,700/- being the instalment amount and Rs.293/- being the value of the gunny bags and the balance of Rs.47426/- alone was given to PW1 as per Ext.P5 cheque. It is also the case of PW4 that regarding those transactions, no endorsement was made in the records kept in the office. According to PW8- the successor of the accused , at the time of taking charge from the accused, the accused did not hand over any documents pertaining to the SB A/c.No. B4461 and the cheque book and pass book etc. According to PW8, cash balance was shown as Rs.474/- when he took charge from the accused. 11. It is pertinent to note that as per the evidence of PW1, supported by the documents Ext.P2(b), it is crystal clear that though the accused withdrew an amount of Rs.58419/- from the Treasury by way of D.D., the same was deposited in the SB A/c and the entire amount has been paid to PW1 as per the acknowledgment of PW1 through Ext.P2(b) receipt. It is also on record that subsequently, an Crl.A.406/2000 -:14:- amount of Rs.10993/- was realised from PW1. Thus, absolutely there is no loss for the Government or the department. Under the above circumstances, it cannot be said that the appellant/accused misappropriated Rs.10993/- and obtained undue pecuniary advantage. As stated above, the appellant had given a correct account as to why PW1 was given only an amount of Rs.47426/- and the said explanation is fully substantiated and approved by the evidence of PW1. It is also in evidence that the amount of Rs.10993/- was realised subsequently from PW1. Hence, there the appellant had given correct account about the amount entrusted with him. Therefore no offence under section 409 IPC will lie against the appellant. Thus, I am of the view that the prosecution has miserably failed to establish and substantiate the allegation against the accused under section 13(1) (c) and (d) read with Section 13(2) of the PC Act, 1988 and under section 409 of IPC. Therefore, he is entitled to get an acquittal of the charges under the above sections of offence. 13. In the light of the discussion, especially, with respect to the evidence of PWs 4 and 8, it can be seen that the appellant had , without any authority or permission, deposited the amount of Rs.58419/- in the Uzhavoor branch of SBT after opening an account in the above bank. PW4 has categorically stated that D.D. for Rs.58419/- was remitted in Crl.A.406/2000 -:15:- the newly opened account in the SBT and after deducting Rs.10,700/- , being the instalment amount, and Rs.293/-, being the value of the gunny bags, the balance amount of Rs.47426/- alone was paid to PW1 as per Ext.P5 cheque. PW4 further stated that regarding those transaction, no endorsement was made in the records kept in the office. As per the evidence of PW7, Ext.P13 cheque for Rs.58419/- was encashed by the BDO and as per Ext.P14 request from the BDO, demand draft was issued. Ext.P15 is the ledger extract of the same. But when PW8 took charge, the accused did not hand over any document pertaining to A/c No.B4461 and the cheque book, pass book etc. According to PW8, even in Ext.P16 cash book retained at the B.D.Office, the cash balance was shown as Rs.474/- at the time when he took charge from the accused. So According to PW8 and PW4, even in the cash book account, there is no endorsement regarding the withdrawal of Rs.58419/- from the treasury and deposit of the same in the newly opened account B 4461 of the SBT, Uzhavoor branch and further release of Rs.47426/- in favour of PW1. When the appellant/accused had no authority, and when he failed to show any sanction or authority from appropriate authority, it can be safely concluded that the appellant/accused had deliberately omitted to make endorsement in the cash book and other records and register kept in the office regarding Crl.A.406/2000 -:16:- the withdrawal of the above amount and about its appropriation. Such deliberate omission on the part of the appellant/accused amount to offence contemplated under section 477A of IPC. It is true that in order to attract Section 477A for falsification of accounts, it must be shown that there is an act with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security or account. In the present case, the appellant deliberately omitted to endorse the material particulars in the cash book and other registers and records in the office. Therefore, according to me, in the facts and circumstances stated above, the accused has committed the offence punishable under section 477A of IPC, and hence, his conviction under section 477A is confirmed. 14. Regarding the sentence, the learned counsel submitted that the appellant/accused had already retired from service and he is facing ailment because of old age and so far he has not received his retirement benefits. On an assessment of the overall situation, especially, the particular facts and circumstances involved in the case, and the nature of defence pleaded, I am of the view that with respect to the sentence under section 477 A of IPC, certain modifications can be made. As per the impugned judgment, the trial court sentenced the Crl.A.406/2000 -:17:- appellant/accused to undergo rigorous imprisonment for two years under section 477A IPC. When the court has framed the charge, the main allegation is that he had misappropriated an amount of Rs.10,993/- and he had committed the offence which charged against him. But I have already found that the said allegation and the charges other than Section 477A IPC will not sustain against the accused/appellant. Therefore, I am of the view that by awarding reasonable amount of fine as sentence, the purpose of justice will be served. Thus, while the conviction of the appellant under section 477A IPC is confirmed, his sentence is modified and directed to pay a fine of Rs.30,000/- instead of imprisonment. 14. In the result, this appeal is disposed of setting aside the conviction and sentence passed against the appellant/accused under sections 13(1)(c) and 13(1)(d) read with Sec.13(2) of the P.C. Act, 1988 and under section 409 IPC. But the conviction of the appellant/accused under section 477A IPC imposed by the trial court is confirmed and the sentence thereon is limited as fine of Rs.30,000/-(Rs.Thirty thousand only) and in default of payment of fine, he is directed to undergo simple imprisonment for a period of 6 months. The appellant is further directed to remit the fine amount within one month from today. If the appellant fails to make the payment as aforesaid, the court below is Crl.A.406/2000 -:18:- directed to take steps for the implementation of the sentence against the appellant. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.A.406/2000 -:19:- V.K.MOHANAN, J. CRL.A.NO.406/2000 B Judgment Dated 17th February, 2009