IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRL.A.No. 123 of 2002(A) ------------------------ CC.2/1996 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT(S): 1ST ACCUSED ------------------------- T.M.GOPALAN S/O.CHAPPA KURUP, 'PRASANTHI',KOTTAPPADY AMSOM,DESOM,MEPPADY, WAYANAD DISTRICT (VILLAGE OFFICER,MUPPAINAD VILLAGE) BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.A.NANDAKUMAR SMT.C.G.PREETHA RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERAL,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, REPRESENTING THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU,SPECIAL CELL, KOZHIKODE CRIME NO.1/1990) BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/1/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- Crl.A.NO.123 OF 2002 --------------------------------------------- Dated 21st January, 2011 JUDGMENT Appellant was Village Officer, Muppainad village during 1985. He was the first accused in C.C.2/1996 on the file of Special Judge, Vigilance, Kozhikode. Second accused was the hearing clerk of Land Tribunal, Kalpetta from February, 1982 to May 1982. Appellant was convicted and sentenced for the offences under Section 5 (1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 and Sections 420 and 167 of Indian Penal Code. Appeal is filed challenging the conviction and sentence. 2. Prosecution case in short was that while working as Village Officer, he Cra 123/02 2 conspired with the second accused to obtain bogus purchase certificates in respect of vested forest land and pursuant to the conspiracy got filed O.A.Nos.7/1982 and 9/1982 respectively in favour of PWs.12 and 13 and O.A.Nos.8/1982 and 11/1982 respectively in favour of Pws.17 and 16 and issued false reports to the effect that they are cultivating tenants, though it is part of the vested forest and cannot be legally assigned to them. Appellant having succeeded in getting purchase certificates in favour of Pws.12, 13, his relatives got power of attorney executed by them in his favour and with the dishonest intention, applied for agricultural loans in the name of Pws.12 and 13 from Kainatty branch of State Bank of India and obtained Rs.4,000/- on 13/10/1982, Rs.2,600/- on 30/9/1983, Cra 123/02 3 Rs.2,500/- on 3/2/1984 through account No.12/347 in the name of PW13 and Rs.10,180/- on 13/10/1982, Rs.5,300/- on 30/9/1983 and Rs.4,205/- on 3/2/1984 in Account No.12/346 in the name of PW12 by making use of the bogus purchase certificates. It is alleged that appellant obtained the loans in the name of Pws.12 and 13 respectively for Rs.27,000/- and Rs.20,000/- respectively in the names of PW12 and PW13 on the strength of power of attorney executed by Pws.12 and 13 in his favour and misappropriated the amount, by withdrawing the amount from the loan allowed in their favour. It is alleged that similarly, second accused on the basis of the power of attorney executed by Pws.16 and 17, availed a loan of Rs.10,180/- on 12/10/1982, Rs.5,300/- on 30/8/1983 and Rs.1,000/- on 21/7/1984 through Cra 123/02 4 account No.12/343 in the name of PW17 and Rs.4,000/- on 30/10/1982 and Rs.2,600/- on 17/11/1982 through account No.12 maintained in the name of PW16 in State Bank of India in account No.12/345 and appellant thereby cheated the bank to the tune of Rs.28,785/- and second accused cheated Rs.23,080/-. When the loans were not repaid, revenue recovery proceedings were initiated. When revenue recovery proceedings were initiated, appellant as Village Officer prepared plans of the properties with false details and thereby committed the offences. 3. Learned Special Judge took cognizance of the offences under Section 5(1) (d) read with Section 5(2) of Prevention of Corruption Act and Sections 420, 167 and 120 B of Indian Penal Code. Both the accused pleaded Cra 123/02 5 not guilty. Prosecution examined 27 witnesses and marked 53 exhibits. After closing the evidence of the prosecution, accused were questioned under Section 313 of Code of Criminal Procedure. They were called upon to adduce evidence. Appellant then examined DW1 and marked Exts.D1 and D2. Learned Special Judge on the evidence found that entire property in survey number 1226 of Muppainad village is a vested forest and the properties assigned in O.A.7/1982, 8/1982, 9/1982 and 11/1982 in favour of Pws.12,13, 16 and 17 are part of the vested forest and suppressing that fact appellant submitted false reports before the Land Tribunal and got the properties assigned in favour of Pws.12, 13, 16 and 17 and appellant got executed power of attorneys in his favour by Pws.12 and 13 and filed Cra 123/02 6 applications for agricultural loan before Kainatty branch of State Bank of India and availed loans by mortgaging the properties obtained under the purchase certificates and misappropriated the amount and thereby committed all the offences charged. Appellant was convicted and sentenced to rigorous imprisonment for three years and fine of Rs.50,000/- and in default rigorous imprisonment for one year, for the offence under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947. Appellant was also convicted and sentenced to rigorous imprisonment for two years and one year each for the offences under Sections 420 and 167 of Indian Penal Code. All the substantive sentences were directed to run concurrently. The second accused was acquitted finding that Cra 123/02 7 there is no evidence to prove the conspiracy alleged against him or the offences alleged against the second accused. First accused filed the appeal challenging his conviction and sentence. 4. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. 5. Argument of the learned counsel appearing for the appellant is that learned Special Judge proceeded on the basis that properties obtained by Pws.12, 13, 16 and 17 as per the orders of the Land Tribunal in O.A.7/1982, O.A.8/1982, O.A.9/1982 and O.A.11/1982 are vested forest, though there is no evidence in support of the said findings. It was argued that along with the statement filed when questioned under Section 313 of Code of Cra 123/02 8 Criminal Procedure, appellant produced a letter, copy of which was produced again in the appeal along with Crl.M.A.455/2011 whereunder, the Secretary, Land Board addressed the District Collector, Wayanad to report whether an extent of 741 acres in survey No.1226 of Muppainad village was a vested forest, as it was reported by the Deputy Collector (General), Wayanand by letter dated 19/12/1988 that out of 3980.73 acres in survey No.1226, only an extent of 741 acres is vested forest. It is argued that as Ext.P21 plan was not proved and was not relied on by the learned Specail Judge, there is no legal evidence to prove that the properties claimed by Pws.12, 13, 16 and 17 are portions of vested forest and therefore, the prosecution case is not sustainable. Cra 123/02 9 6. Learned counsel also argued that evidence of the officials of the Forest department are insufficient to prove that it was the properties involved in O.As.7/1982, 8/1982, 9/1982 and 11/1982 are part of vested forest and instead, the evidence show that the properties do not fall within the vested forest and in such circumstances, the conviction is not sustainable. Learned counsel also argued that material evidence was suppressed from the Court and evidence of PW9 shows that he was asked to enquire and report whether the purchase certificates were obtained from the Land Tribunal, after obtaining NOC from the Forest department and before the properties were assigned by the Land Tribunal whether the properties were in their possession and though it was deposed that the report shall be filed Cra 123/02 10 within fifteen days, no such report was submitted. It was argued that the report was not produced because if the report was produced it would disprove the prosecution case and it would have established that only 741 acres of land in survey No.1226 of Muppainad village is vested forest and the properties obtained by Pws.12,13, 16 and 17 are not part of vested forest. Learned counsel also argued that when on almost identical set of facts, second accused was acquitted, on the same evidence, conviction of the appellant is not sustainable. Learned counsel finally argued that on a proper appreciation of evidence, it is to be found that appellant did not commit any of the offences. 7. Learned Public Prosecutor submitted that evidence conclusively establish that Cra 123/02 11 property got assigned from the Land Tribunal by Pws.12,13, 16 and 17 are part of vested forest. It was argued that property was identified in the presence of the appellant with reference to the records and it is clear that the properties were part of vested forest and in such circumstances, the conviction is perfectly legal. Learned Public Prosecutor also pointed out that evidence establish that bogus proceedings were initiated before the Land Tribunal and purchase certificates were obtained in the name of Pws.12 and 13 his relatives and appellant got power of attorney executed in his favour by Pws.12 and 13 and thereafter availed agricultural loans from State Bank of India in the name of Pws.12 and 13 and for getting the loans from the bank appellant forged plans and submitted them and Cra 123/02 12 produced the bogus certificates. It was pointed out that subsequently when the loan was not repaid for realisation of the amount, revenue recovery proceedings were initiated and in that proceedings also appellant submitted false reports. It was argued that on the evidence conviction for the offence under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act is perfectly legal. Learned Public Prosecutor also pointed out that evidence establish that with the dishonest intention to cheat, after getting power of attorneys executed in his favour, appellant approached State Bank of India and availed loans for agricultural purpose and did not pay the same and to avail that loans bogus purchase certificates were produced and in such circumstances, offence under Sections 420 and Cra 123/02 13 167 of Indian Penal Code were committed and there is no reason to interfere with the conviction or the sentence. 8. Following points arise for consideration. 1) Whether the properties covered by O.A.7/1982, 8/1982, 9/1982 and 11/1982 are parts of the vested forest? 2) Whether appellant submitted false reports to the Land Tribunal to obtain purchase certificates in the name of PWs.12, 13, 16 and 17? 3) Whether the appellant, with the dishonest intention applied for agricultural loans from Kainatty Branch of State Bank of India in the name of Pws.12 and 13 on the strength of their power of attorney and by inducement made the bank part with money, Cra 123/02 14 which was received by the appellant and misappropriated it and thereby committed the offences as alleged? 4) Whether the sentences awarded is reasonable? 9. The points: Fact that appellant was Village officer of Muppainad village during 1984 is not disputed. Second accused was the hearing clerk of Land Tribunal, Kalpetta. One Savithri claiming to be landlady filed four applications under Section 72BB of Kerala Land Reforms Act for payment of compensation due to her alleging that PWs.12, 13, 16 and 17 are the cultivating tenants in respect of the property in survey No.1226 having an extent of five acres each. Land Tribunal initiated O.A.7/1982 and 9/1982 in respect of the property allegedly in the Cra 123/02 15 possession of Pws.12, 13 and O.A.8/1982 and 11/1982 in respect of the properties allegedly in the possession of Pws.17, and 16. Exts.P16 and P18 are the files relating to O.A.7/1982 and 9/1982 maintained by Land Tribunal. Exts.P17 and P19 are the files of O.A.8/1982 and 11/1982 maintained by the Land Tribunal. Reports were called for by the Special Tahsildar, Land Tribunal, from the appellant as he was the concerned Village Officer. Exts.P16 (a) and P18(a) are the respective communications sent by Tahsildar to the appellant in respect of O.A.7/1982 and 9/1982 calling for the reports. Exts.P16(b) and P18(b) are the reports respectively submitted by the appellant to the Tahsildar as sought for under Ext.P16(a) and P18(a) to the effect that properties were in their possession before Cra 123/02 16 1964. Based on the reports, Tahsidar as per separate orders dated 18/3/1982, assigned the jenm right in respect of 5 acres each in survey No.1226 part of Muppainad village in favour of Pws.12 and 13. Similarly based on Ext.P17(a) and P19(a) requisitions, appellant as the Village Officer submitted Exts.P17(b), P19(b) reports to the Land Tribunal in O.A.8/1982 and O.A.11/1982 and based on those reports Tahsildar passed separate orders dated 18/3/1982 assigning jenm right in respect of 5 acres of land in survey No.1226. Ext.P16 to Ext.P19 files reveal that the applications were filed in C form by the landlady in February 1982. The respective communications calling for the reports of the appellant was sent by Tahsildar on 10/3/1982. Appellant as the Village officer furnished the positive reports, Cra 123/02 17 in all the cases on 16/3/1982. Immediately on 18/3/1982 all the O.As were allowed and jenm rights were assigned to Pws.12,13, 16 and 17. In the reports appellant has certified that Pws.12, 13, 16 and 17 have been in possession of the property earlier to 1964 and they have been cultivating Thiruva grass earlier and later cardamom is being cultivated. Pws.12 and 13 are direct brothers. Wife of the appellant is the niece of Pws.12 and 13. It is in their favour, Exts.P16(b) and P18(b) reports were submitted by the appellant. Learned Public Prosecutor argued that on the evidence it is proved that the reports are falsely filed and Pws.12 and 13 were never cultivating tenants. Argument of the learned counsel appearing for the appellant is that the said findings of the trial court is based on the erroneous Cra 123/02 18 assumption of the learned Special Judge that entire extent in survey No.1226 is vested forest land. It is argued that the said finding was based on Ext.P22 notification and Ext.P22 notification will not establish that entire extent in survey No.1226 is a vested forest. Learned counsel also pointed out that along with the statement filed by the appellant before the Special Judge, as part of the questioning under Section 313 of Code of Criminal Procedure, appellant had produced a copy of the letter addressed by the Secretary of Land Board to District Collector, Wayanad and the said letter reveals that out of 3980.73 acres comprised in survey No.1226 of Muppainad village, only an extent of 741 acres is vested forest and there are 250 occupants in that land. A report was called for Cra 123/02 19 from the District Collector to consider whether the said 741 acres alone is vested forest. A copy of that document was produced in the appeal and I.A.455/2011 is filed to receive it as additional evidence. Being a document produced before the trial court along with the written statement filed as part of his answers to the questions put to him under Section 313 of Code of Criminal Procedure the document is not to be received as additional evidence. I.A.455/2011 is therefore, dismissed. It is also argued that though Ext.P21 plan was produced and PW22 was examined, the surveyor who prepared the plan was not examined and learned Special Judge did not accept Ext.P21 did not rely on that plan and there is no evidence to prove that the whole extent in survey No.1226 is vested forest. Argument is Cra 123/02 20 that if that be so and only 741 acres in survey No.1226 is vested forest, unless prosecution establishes that the property covered by Exts.P16 to P19 O.As are portions of the said vested forest, finding of the learned Special Judge that report filed by the appellant is false, cannot be accepted. Learned counsel also argued that evidence of the Forest officials, when examined establish that near to the disputed properties there are other persons in possession of similar properties and in such circumstances, it cannot be found that the reports are false. 10. True, Ext.P22 notification will not establish that the whole extent in survey No.1226 as found by the learned Special Judge was vested forest. Ext.P22 notification was issued by custodian of vested forest, in Cra 123/02 21 exercise of the powers under Kerala Private Forests (Vesting and Assignment) Act, 1971 and published in the Gazette dated 25/1/1977 showing the location of vested forest in Kozhikode district. Wayanad was at that time part of Kozhikode district as Wayanad district was formed carving out parts from the districts of Kozhikode and Kannur only later. Ext.P22 shows that vested forest in Muppainad village are the following viz.(1) Survey No.1169 portion-- Malayalam Plantation 185 acres, (2)Survey No.1186, 1187, 1208, 1215 and 1226 together portion-Nilambur Kovilakom. Approximate extent 2200 hectres. Boundaries of this item are shown as south Calicut Taluk, east survey no.1214 and Ernad Taluk and west survey No.1187 portion and Calicut taluk and north survey numbers 1185, 1186 part, 1180 Cra 123/02 22 part, 1219 part, 1208 part, 1225 part, 1213 part and 1214 part. Learned Special Judge found that Rule 2A of Kerala Private Forests (Vesting and Assignment) Rules, 1974 specifies how demarcation of private forests are to be effected and notification is to be published in the Village office also and Ext.P22 notification was issued in exercise of the powers under Kerala Private Forest (Vesting and Assignment) Act, 1971 and it shows S.No.1226 is a vested forest. It was held that therefore, the whole extent in survey N0.1226 of Muppainad village is vested forest. Letter dated 15/7/1989 by the Secretary of Land Board to the District Collector establish that total extent in survey no.1226 of Muppainad village is 3980.73 acres. Together with that extent, the total extent in survey nos.1186, Cra 123/02 23 1187, 1208, 1215 and 1226 admittedly exceeds much more than 2200 hectres, which alone is shown as the vested forest in Ext.P22 notification. If that be so, only portion of those items are the notified vested forests. Therefore, finding of the learned Special Judge that the whole extent in survey no.1226 of Muppainad village is vested forest cannot be correct. But that does not mean that Ext.P16 (b), 17(b),P18(b) and P19(b) reports submitted by the appellant in favour of Pws.12,17, 13 and 16 are not false reports. 11. Exts.P23 and P24 are the respective files maintained by State Bank of India Kainatty branch in respect of the agricultural loans granted in the name of Pws.12 and 13. PW19 was the Manager of that branch when the loan was sanctioned. Ext.P23 establishes that Cra 123/02 24 though a loan of Rs.27,000/- was sanctioned in the name of PW12, even the loan application was filed by the appellant, as the power of attorney holder of PW12 and not by PW12. That application is dated 2/7/1982. Ext.P23(a) is the power of attorney executed by PW12 in favour of the appellant. It was executed only on 6/10/1982. It is thus clear that application for the loan as the power of attorney holder of PW12 was submitted by the appellant even before the power of attorney was executed in his favour by PW12. Ext.P23(a) shows that the power of attorney was executed by PW12 empowering appellant, who allegedly has been in possession of the property obtained by him as per the order in O.A.7/1982 and purchase certificate 123/1982 to be in possession of the property and also to avail any loan from State Cra 123/02 25 Bank of India, Kainatty branch and empowering the appellant deal with the same. Similarly, Ext.P24 file relating to the loan sanctioned in the name of PW13 shows that the application for loan in the name of PW.13 was also submitted before the bank by the appellant as his power of attorney on 2/7/1982. As is the case with the power of attorney executed by PW12, Ext.P24(a) power of attorney was executed by PW13 only much later on 6/10/1982. It is thus clear that when appellant approached the bank and submitted application for agricultural loan in the name of PW13, he was not having any power of attorney, which was executed in his favour only subsequently. The fact that appellant submitted those applications for loan as power of attorney holder of Pws.12 and 13 and loan of Rs.27,000/- and Rs.20,000/- Cra 123/02 26 respectively in favour of Pws.12 and 13 were sanctioned and part of the loans so sanctioned were received by the appellant and utilized by him personally, are not only not disputed but admitted when he was questioned under Section 313 of Code of Criminal Procedure. True, case of the appellant is that he utilized the money for agricultural operation in the properties, though he claims that the cultivation so made were damaged. Evidence of Pws.12 and 13 prove that they were unaware of the loan or the liability due to climatic variations. It is also admitted by the appellant that for non payment of the loan amount, bank initiated proceedings against Pws.12 and 13, for realisation of the loan granted in favour of PW12 and PW13. Ext.P38 is the file relating to realisation of loan granted in the name of Cra 123/02 27 PW13. Exts.P37 and 38 files establish that revenue recovery proceedings were initiated for realisation of the amounts respectively due from PW12 and PW13. Ext.P37 file shows that including interest revenue recovery proceedings were initiated for realisation of Rs.26,048.70 due from PW12. The file shows that demand notice under Section 7 was issued by Tahsildar, which is seen served by the endorsement of the appellant as Village officer, on 10/3/1986. Ext.P37(g) is the report of the appellant. The report is to the effect that notice was served on PW12. He is not a resident of that village and he is not having any movable property and he is in possession of 5 acres in survey No.1226 and though it was cultivated with cardamom and coffee, there is no income from the property. Report also reveals that along Cra 123/02 28 with the report Ext.P37(a) sketch of the property and Ext.P37(b) Adangal extract are enclosed. Ext.P37(a) sketch shows that the property was identified by the appellant as a property which lies to north of river, west of the property of PW17 (against him also revenue recovery proceedings were initiated under Ext.P39 file), to the south of D.stone and to the east of the property of PW13 (against whom also revenue recovery proceedings are initiated). The file also discloses that subsequently Ext.P37(f) plan was prepared by PW22 Village Assistant, whereunder the said property is identified. As per that sketch, the property of PW12 lies to the north of the property of Bhaskaran, west of the property of PW16, to the south thodu and to the east of the property of PW12. Evidence of PW22 establishes Cra 123/02 29 that when Ext.P37(f) plan was prepared, appellant was present and the property was identified by him and the plan was prepared as per that identification. When appellant was questioned on this evidence under Section 313 of Code of Criminal Procedure he did not deny those facts. It is thus clear that when Ext.P37(a) sketch was prepared and submitted by the appellant to the Tahsildar stating that said property is in the possession of PW12, property so identified by him entirely different from the property which was subsequently identified and shown in Ext.P37(f) plan as pointed out by the appellant. 12. So also Ext.P38 file shows that on getting a certificate from the District Collector based on the requisition submitted by the Manager of Kainatty branch of State Bank Cra 123/02 30 of India for realisation of Rs.11,900/- from PW13 demand notice was issued under Section 7 of Revenue Recovery Act and sent it to the appellant for service. Ext.P38(f) is the report submitted by the appellant. The report is dated 10/3/1986. Report shows that notice was served on PW13 on 4/3/1986. Appellant reported that PW13 is not a resident of that village and he is not having any movable property in that village and he is in possession of 5 acres of land and though it was cultivated with grass, the cultivation was damaged and at present there is no income and the property could be attached and for that purpose Ext.P38(b) sketch and