CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 CRL.A.No. 308 of 1999() ----------------------- Crl. Case No. 16/1998 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT(S): ----------- ANTONY CARDOZA, FORMERLY MANAGING DIRECTOR, KERALA STATE HANDICAPPED PERSONS'WELFARE CORPORATION, THIRUVANANTHAPURAM BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON 25-01-2011 DELIVERED THE FOLLOWING: CR V. RAMKUMAR, J. ....................................... Crl. Appeal 308 of 1999 ........................................ Dated: 25th January, 2011 JUDGMENT In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the first accused in C.C. No. 16 of 1998 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for offences punishable under Sec. 13 (2) read with Sec. 13 (1) (c) of the Prevention of Corruption Act, 1988 ( "the P.C. Act" for short) and Sec. 409 read with Sec. 34 I.P.C. THE PROSECUTION CASE 2. The case of the prosecution can be summarised as follows:- During the period from 1-9-1995 to 18-11-1996, A1 (Antony Cardoza) was the Managing Director and A2 (P. Crl. Appeal 308 of 1999 -:2:- Prabhakaran Nair) was the Lower Division Accountant in the Keala State Handicapped Persons' Welfare Corporation ("the Corporation" for short) . A1 and A2, while employed in the Corporation as above were "public servants" within the meaning of Sec. 2 (c) of the P.C. Act. While so, on 18-5-1996 A1 and A2, in furtherance of their common intention to commit criminal misconduct and misappropriation , abused their official position and A1 misappropriated or otherwise converted a sum of ` 23,198/- entrusted to him and under his control as such public servant. A2 facilitated A1 for committing misappropriation as above. A1 and A2 thereby committed an offence punishable under Section 13 (2) read with Sec. 13 (1) (c) of the P.C. Act. In furtherance of the aforesaid common intention A1 with the aid of A2 purchased furniture items such as a Godrej almirah, Godrej table, full armchair, dining table, and six chairs altogether worth ` 23,198/- from Bright Furniture Mart , Chali, Thiruvanathapuram on 18-5-1996 without authority and dishonestly despatched the same to the residence of A1 at Thekkummoodu and A1 converted the same to his own use without accounting for the same in the stock register of the Corporation . A1 and A2 thereby committed offences punishable under Sections 403 and 409 read with Sec. 34 I.P.C. as well. Crl. Appeal 308 of 1999 -:3:- 3. On the two accused persons pleading not guilty to the charge framed against them by the Court below on 22- 10-1998, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 12 witnesses as P.Ws 1 to 12 and got marked 22 documents as Exts. P1 to P22 and 10 material objects as MOs 1 to 10 . 4. After the close of the prosecution evidence, the two accused persons were examined under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The appellant / first accused had the following to submit before the trial Court:- The furniture in question was purchased under the bona fide belief founded on Government Orders to the effect that the Chief Executive of Public Sector Undertakings was eligible for residential accommodation. The furniture was purchased from the office as per proper indent and was taken to his residence for the use of the Managing Director Crl. Appeal 308 of 1999 -:4:- after bringing the same first to the office and entrusting the bills at the office of the Corporation. It was the Corporation which had taken the residential accommodation for his use and the rents for the same were being paid directly to the landlord from the office of the Corporation by means of cheques. The furniture was used in the above residential accommodation in utmost good faith as above. THE CONVICTION AND SENTENCE BY THE TRIAL COURT 5. The Enquiry Commissioner and Special Judge, as per Judgment dated 23-04-1999 acquitted both the accused of the offence punishable under Sec. 403 I.P.C. but convicted them of the offences punishable under Section 13 (2) read with Sec. 13 (1) (c) of the P.C. Act and Section 409 read with Sec. 34 I.P.C. For the conviction under Sec. 13 (2) read with Sec. 13 (1) (c) of the P.C. Act A1 was sentenced to rigorous imprisonment for 2 years and to pay a fine of ` 10,000/- and on default to pay the fine to undergo rigorous imprisonment for six months. A2 was sentenced only to pay a fine of Crl. Appeal 308 of 1999 -:5:- ` 10,000/- with a similar default sentence . No separate sentence was awarded to A1 and A2 for their conviction under Sec. 409 I.P.C. It is the said judgment which is assailed in this Appeal by A1. There is no dispute that the 2nd accused died after the judgment of the trial Court. THIS APPEAL 6. The only point which arises for consideration in this Appeal is as to whether the conviction entered and the sentence passed against the appellant (A1) are sustainable or not ? The Point:- 7. I heard Advocate Sri. Bindu Sasthamangalam , the learned counsel appearing for the appellant and Advocate Sri. M.R. Venugopal, the learned Public Prosecutor who defended the State. PUBLIC PROSECUTOR'S ARGUMENT 8. The learned Public Prosecutor made the following Crl. Appeal 308 of 1999 -:6:- submissions before me in support of his argument to dismiss the appeal and confirm the conviction and sentence :- Before purchasing the furniture (MOs 1 to 10) A1 was bound to invite quotations or invoices and thereafter he had to issue indent for the purchase. There was no quotation obtained nor any purchase order issued. Whenever purchase is made, entries should be made in Ext.P8 stock register . Neither P.W4, the Confidential Assistant who was maintaining the stock register nor P.W. 7 who was the immediate officer below the first accused and who was maintaining the indent file was informed about the purchase nor any entries made in the stock register or indent file. Ext.P2 invoice and Ext.P5 cash bill were never shown to P.W.4 or P.W.7 . The evidence of P.W.2 the casual labourer who was assembling tricycles in the Corporation will show that the furniture (MOs 1 to 10) was brought in front of the Corporation Office from the Bright Furniture Mart only for the purpose of taking P.Ws 2 and 5 and the accused persons to the residence of A1. A1 and A2 went in the car driven by P.W. 5 who was the driver of "Sowbhagya" Store run by the Corporation and P.W. 2 also accompanied them. Eventhough A1 retired from the Corporation on 18-11- 1996, he did not give any intimation to the office requesting Crl. Appeal 308 of 1999 -:7:- that the furniture may be taken back. Instead, he had fraudulently retained the furniture in the very same house which he was occupying even after his retirement . A1 has not given any proper explanation for the purchase and diversion of the furniture to his house even during his examination under Sec. 313 Cr.P.C. His specific defence was that as per Exts. D1 and D2 Government Orders A1 was entitled to residential accommodation. Assuming that he was entitled to residential accommodation, there is nothing to show that he was entitled to furnished accommodation. The intention of the accused was to grab at the property for his own personal use even after relieving from the post . He was thus dishonestly and fraudulently converting for his own use MOs 1 to 10 under his control as a public servant thereby attracting Sec. 13 (1) (c) of the P.C. Act and punishable under Sec. 13 (2). Since A1 had dominion over the furniture even after his tenure as the Chief Executive of the Corporation, Sec. 409 I.P.C. is clearly attracted. The dishonest intention is clear from the fact that Ext.P3 cheque for ` 23,198/- drawn on the Statue Branch of the State Bank of India is dated 24-5-1995 whereas the counterfoil of the cheque bears the date 18-5-1996 which is the date on which MOs 1 to 10 were actually brought from Bright Furniture Mart. The conviction entered against the appellant Crl. Appeal 308 of 1999 -:8:- does not call for any interference. The sentence imposed on the appellant is also commensurate with the gravity of the offence and may not be interfered with. 9. I am afraid that I find myself unable to agree with the above submissions made on behalf of the prosecution. THE PROSECUTION EVIDENCE 10. P.W.1 (P.K. Ravikumar), is the de facto complainant. In the year 1996 he was the Secretary of the employees' association of the Corporation. He had sent a complaint to the Industries Minister to the effect that furniture purchased with the funds of the Corporation were taken to the house of A1 at Thekkummoodu without bringing the same to the Corporation Office and without entering the same in the stock register . Those furniture items are not in the office of the Corporation even now. They consisted of a table, an arm chair, a dining table and six chairs . It was A2 who wrote the cash book as well as the cheque. A1 was the drawing and disbursing officer . The furniture was purchased from Bright Furniture Mart at Chalai for a sum of ` 23,198/- . It was the Confidential Assistant who used to enter the purchases on behalf of the Corporation in the Stock Register and distribute the same . Ext.P1 (a) is the relevant entry in Ext.P1 cheque issue register showing that Cheque No. 77013 for ` 23,198/- was issued to Bright Furniture Mart. The relevant entry has been made by A2 and signed by A1. Ext.P2 is the invoice issued by Bright Furniture Mart, Aryasala, Thiruvananthapuram. A2 has endorsed on Crl. Appeal 308 of 1999 -:9:- that invoice "may be sanctioned". A1 has signed below that. Ext.P3 is the cheque prepared by A2 and signed by A1. The date of the cheque is 18-5-1996. But Ext.P4 (a) counterfoil of Ext.P3 cheque in Ext.P4 cheque book bears the date 24-5-1996. P.W.1 joined the Corporation only in the year 1997 November. He did not verify whether the purchase of furniture was after complying with the procedure. The usual procedure is to purchase materials after taking an invoice and then effecting payment by means of cheque. Invoices are taken and cheques are issued in the name of the Managing Director who is the Chief Executive. P.W.1 doesn't know whether a residential accommodation was provided to A1 from the Corporation. He has not seen the stock register of the Corporation. If any goods are purchased by the Corporation, it is the person who maintains the stock register who has to take those goods into the stock . The Corporation has a Chairman . He has an office room. But he doesn't have residential accommodation. The complaint which P.W.1 had given to the Minister was while he was employed in the Departmental Store. He was personally handing over the complaint to the Minister. When goods are purchased, they will be entered in the stock register on the basis of invoice and cash bill . The Chairman and M.D. of the Corporation was given telephone facility from the Corporation. The facilities given to the Chairman and M.D. would be taken back after they demit office. He has not seen G.O. (MS) 70/87/Plg dated 19-10-1987. He has not been to the residence of A1. He does not know whether It was as part of his official duty that A2 prepared the cheque. The Act of drawing the cheque and placing it for the signature of the superior officer is part of the Crl. Appeal 308 of 1999 -:10:- official duty. It was revealed in the enquiry that A2 was performing his official duty. 11. P.W.2 (Vasudevan Nair ) was a casual labourer employed by the Corporation for assembling tricycles. A1 was the M.D. and A2 was the Accountant. On the request of A2 he had obtained a quotation from Bright Furniture Mart at Chalai . That day evening at 3.30 p.m. A2 had given him an envelop and had asked him to deliver it at the said furniture mart. After handing over the envelop at the Mart he came to know that it was a cheque for ` 23,198/-. As the shop keeper told him that they will despatch the furniture, he returned to the Corporation Office. At about 6.30 p.m. the furniture was brought in front of the office of the Corporation in a goods autorickshaw. They were, a steel cupboard , a table , full arm chair , a dining table and six chairs . When the furniture was brought, A1, A2, driver Suresh (P.W.5), and L.D. Clerk Vijayan (P.W.8) were standing outside the door. On the request of A1 , A2 asked them to take the furniture to Thampuranmukku. P.W.2.,A1,A2 and P.W.8 went ahead of the autorickshaw in the office car. P.W.5 was driving the car. The furniture was unloaded at the entrance of A1's house. A1 was residing on the first floor of a house . Those who brought the furniture took the furniture inside the house of A1. A2 paid the rental of the autorickshaw. Ext.P5 is the cash bill given to him from the furniture mart when he gave the cheque. Ext. P2 is the invoice which he took from the furniture mart. Ext.P6 is another invoice . Ext.P2 and P6 invoices were taken from two different establishments. The other establishment is Standard Industries. He had handed over both the invoices in the office of the Corporation. It was on the instruction of A1 that the Crl. Appeal 308 of 1999 -:11:- furniture was dispatched to the office of the Corporation . He had entrusted Ext.P5 cash bill with A2. He had learnt that the furniture was purchased in accordance with the office procedure. 12. P.W.3 (Hariharan) is the Cashier of Bright Furniture Mart. He had given Exts. P2 and P6 invoices as well as quotation to the Corporation. The furniture mentioned in Ext.P2 invoice was supplied to the Corporation against payment made by cheque for a sum of ` 23,198/-. Ext.P5 is the cash bill prepared by him on 18-5-1996 on which date itself the furniture was despatched . It was P.W.2 who had come and taken the invoice. 13. P.W.4 (Radhamma) was the Confidential Assistant of A1 in the Office of the Corporation. A2 was the L.D. Accountant there. P.W.4 was maintaining Ext.P8 stock register for purchase of furniture and stationary items in the Corporation. The furniture mentioned in Ext.P2 invoice was not brought to the office on 18-5-1996 and she was not aware of the purchase of the furniture. Ordinarily, if a bill is received through tapal it will be shown to the M.D and his initials will be taken and she will be asked to take the goods on stock. Ext.P2 invoice was not given to her. During the tenure of A1 she was not shown the furniture bill nor had she taken stock of the furniture. The furniture mentioned in Ext.P2 have not been entered in the stock register. She knew about the purchase under Ext.P2 only after the case was registered. There is an office order laying down her duties which were the normal duties of the Confidential Assistant and despatch. There is no specific mention in the office order regarding her duty to maintain the stock register. She saw Ext.P2 only during investigation of Crl. Appeal 308 of 1999 -:12:- the case. It was A2 who was keeping the invoice. When the invoice is received in the office it will be entered in the tapal and will be initialed by the M.D. The stock register was being kept from the year 1993 onwards as directed by the M.D. The furniture now in the Corporation have been entered in Ext.P8 stock register. All the goods of the Corporation are not entered in Ext.P8. Similarly, goods manufactured by the Corporation are not entered in Ext.P8. During the tenure of A1 as M.D. when furniture items were purchased, they were mostly not entered in the stock register. M.D. is the Chief Executive of the Corporation. She does not know whether the M.D. was provided residential accommodation. She does not know what all facilities were given to A1. She has not been to the house of A1. Out of the furniture mentioned in Ext.P5 cash bill, she has seen the table, chair and cupboard at the place where the M.D. was sitting . She has been working in the Corporation ever since the year 1980. If any properties are purchased for the Corporation, it is for the M.D. to decide as to how and where such properties are to be kept. As per the office order dated 31-08-1995 it was for A2 to maintain the account, cash book and ledger. If any properties were purchased it was for A2 to prepare the cheque as part of his official duty. 14. P.W.5 (Suresh Kumar ) was the driver of "Sowbhagya" Department Store, run by the Corporation. He became driver on 1-7-1996. Prior to that he was a peon in the Corporation Office. A1 was the M.D. of the Corporation and he was provided with an office car bearing Reg. No. KL-01-G 5354. A1 was residing in a rented house at Thekkinmoodu. It was the first floor of a two-storied building. On 18-5-1996 , the Store Crl. Appeal 308 of 1999 -:13:- Manager asked him to go to the Corporation Office at Bakery Junction as requested by A1. He accordingly went there . A1's driver had already gone home. He was requested to take A1 to his house. Accordingly he started from the Corporation Office at 6 p.m. He was told that furniture was being brought in a goods autorickshaw. A1 , A2 and P.W.2 were also in the Car. The furniture was taken inside the house of A1. He saw the furniture for the first time in the Corporation Office. He does not know the source of furniture or how it came to the Corporation Office. 15. P.W.6 (Rajagopal) was the Manager of the Statue Branch of the State Bank of India. There is an account in his branch in the name of the M.D. of the Corporation. Ext.P3 cheque in favour of Bright Furniture Mart, issued by the corporation was drawn on his Bank. The sum of ` 23,198/-. mentioned in the cheque was paid through the Tamil Nadu Mercantile Bank. The cheque was cleared since it had come to the Bank properly and legally. 16. P.W.7 (Vijayakumari) was the Junior Superintendent of the Corporation since 21-3-1992 onwards. As per the office order dated 31-08-1995, the duty of A2 was maintenance of accounts, cash book and ledger. Ext.P9 is the indent file of the Corporation. After the tenure of A1, one A. Francis took charge as M.D. on 19-11-1996. When the Corporation purchased furniture such as steel table with drawer, steel cupboard, steel arm chair, proper invoice was taken and the same is recorded at page 70 of Ext.P9 in which the then M.D. had sanctioned the request and had ordered purchase of the same from SIDCO . The said purchase is entered in Ext.P8 stock register. No request was made from the office for purchase of the Crl. Appeal 308 of 1999 -:14:- furniture mentioned in Ext.P5 cash bill nor was any purchase order issued for the same . It was A2 who made the request and A1 had signed the same and sanctioned ` 23,198/-. The furniture mentioned in Ext.P2 invoice was not purchased for the office . He does not know whether the said furniture was brought to the office . One K.K. Asokan was working in the accounts of the Corporation. As per order No. 4/95 dated 31-07-1995 the duty of the said Asokan was to supervise the maintenance of cash book and other registers. A2 was working as L.D Accountant under the said Asokan. It was under the guidance and supervision of the said Asokan that A2 was discharging his duties as L.D Accountant. If the M.D purchases goods there will be invoice and cash bill in the office. Ext.P2 invoice and P5 cash bill were obtained among the records transferred by A2 after he was placed under suspension. The furniture covered by Exts.P2 and P5 were not entered in the stock register which was maintained by PW4. During the tenure of A1 as M.D., many of the furnitures purchased were not entered in the stock register. Stationery items have been entered in the Stock Register. On 12.09.1995, PW7 had ordered for an executive table, executive chair and steel almirah on the directions of A1. Since the M.D was not available she signed the order on behalf of the M.D. It is for the M.D to decide who should use the goods including furniture purchased for the Corporation. She does not know whether A1 was provided with any residential accommodation. A1 was provided with a telephone, the rent of which was paid from the funds of the Corporation. When the M.D is relieved from the post, his telephone will be disconnected and the successor M.D will take back the telephone connection. When the Crl. Appeal 308 of 1999 -:15:- new M.D asks the office staff to take the necessary steps, they will issue the letter and take steps for retrieval of the assets from the former M.D. Eventhough as per office order PW7 was supposed to supervise the work of the ministerial staff, she did not get any opportunity to do so. The Industrial Extension Officer was immediately below A1 and the post of J.S was immediately below that of the Industrial Extension Officer. During the period in question, the post of PW7 was immediately below that of the M.D. She has not supervised as to whether A2 was discharging his functions in accordance with the officer procedure. Maintaining the cheque book, preparing cheque and getting the same signed after putting the date etc. were the duties of L.D.Accountant and A2 was doing those duties. 17. PW8 (Vijayan Nair) was the Store Assistant in the Corporation since the year 1984. He was the member of the Purchase Committee of the Corporation. While green gram and rice were purchased pursuant to the decision of the Purchase Committee, furniture was not so purchased. It was not necessary to consult the Purchase Committee for purchase of furniture and it was the M.D who would purchase the furniture for the Corporation. 18. PW9 (Padma Kumari) was the Under Secretary of the Vigilance Department from April 1996 onwards. It was she who had processed the Investigation report and connected records sent by the Director of Vigilance to the Government and submitted the same to the Principal Secretary through the Additional Secretary, Vigilance. Shri.K. Mohananchandran was the then Principal Secretary. Ext.P10 is the order issued by the Principal Secretary according sanction to prosecute A1. As per the G.O. Crl. Appeal 308 of 1999 -:16:- shown to PW9, the Chief Executives of Public Sector Undertakings are entitled to residential accommodation. She does not know what all things will be included in the residential accommodation. Shri. Mohanachandran, the Principal Secretary is still in service in the department. She does not remember the details of the merits of the case. 19. PW10 ( T.P.Mukundan) is the present M.D. of the Corporation. After perusing the Investigation files and connected records despatched to him by the Director of Vigilance, he accorded Ext.P11 sanction to prosecute A2 who