IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 CRL.A.No. 192 of 2000() ----------------------- CC.2/1998 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT(S): ------------ K.A. SWAMINATHAN, AGED 59, S/O. AYYAPPAN, CHIRAMUKGHATHU HOUSE, PAPPINASSERY P.O., KANNUR DISTRICT BY ADV. SRI.C.S.MANU RESPONDENT(S): ------------- 1. VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR UNIT, REPRESENTED BY ITS DY. SUPERINTENDENT OF POLICE 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON 05/07/2011 DELIVERED THE FOLLOWING: Crl.M.P. No. 1402 of 2000 in Crl.Appeal No. 192 of 2000 Dismissed. Sd/- V. Ramkumar, Judge Dated: 5-7-2011 V. RAMKUMAR, J. ........................................................ Crl. Appeal No. 192 of 2000 ......................................................... Dated: 5 th July, 2011 JUDGMENT In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the sole accused in C.C. 2 of 1998 on the file of the Court of the Enquiry Commissioner & Special Judge (hereinafter referred to as the “Special Court” or the “Special Judge” , as the case may be) 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 of Indian Penal Code (“I.P.C.” for short) . THE PROSECUTION CASE 2. The case of the prosecution can be summarised as follows:- Crl. Appeal No. 192 of 2000 -:2:- In the evening of 12-02-1993 the accused (K.A. Swaminathan) while working as a public servant in the capacity of Junior Superintendent and in-charge of the cash chest and its key in the office of the District Educational Officer, (D.E.O. for short), Kannur committed criminal misconduct by dishonestly misappropriating Government money to the tune of ` 80891/- and thereby obtained undue pecuniary advantage to himself by corrupt or illegal means and caused a corresponding loss to the Government. The accused has thereby committed offences punishable under Sections 13 (2) read with Sec. 13 (1) (c ) and 13 (1) (d) of the P.C. Act, and Sec. 409 I.P.C. THE TRIAL 3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 16 witnesses as P.Ws 1 to 16 and got Crl. Appeal No. 192 of 2000 -:3:- marked 53 documents as Exts. P1 to P53. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1) (b) of Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before the trial Court:- As instructed by the D.E.O. (P.W.1) he used to incur expenditure towards Work Experience Programme, Carrier Guidance Programmes, Games Festival, various quiz programmes etc. from the cash available in the cash chest. Such expenditures already incurred were not entered in the cash books . This was the prevailing practice in the office of the D.E.O., Kannur. The expenditures will be entered in the cash books only later when the fund under the above items are collected and received from the Schools. Hence, the cash balance as per the cash books did not tally with the cash available in the cash chest at any time . Further, there was Crl. Appeal No. 192 of 2000 -:4:- no practice of keeping separate accounts for the expenses incurred by him as stated above. During his tenure as J.S. from September 1991 to February - 1993 he had incurred huge amounts for the aforesaid official purposes which were not reflected in the cash books. Hence, the charge that he has misappropriated Rs. 80891/- is absolutely baseless and incorrect. When he used to keep cash , the cash chest was placed inside the safe. The safe has got two original keys and two duplicate keys . The cash chest has got one original key and one duplicate key. He was provided with two keys of the safe and one key of the chest . He used to keep the key of the chest given to him in the safe itself. On 28-02-1991 two keys i.e. one key of the safe and one key of the chest were deposited in the Sub Treasury, Kannur. The remaining one key of the safe was kept by the D.E.O. for the purpose of taking out the records kept in the safe. The D.E.O. (P.W.1) used to take the records such as cheque books, drafts, pass books, important files of various sections kept in the safe with Crl. Appeal No. 192 of 2000 -:5:- the help of the other staff members . He used to lock the safe with one key only. Hence, with the key available with P.W.1 it was possible to open the safe. The verification certificate given by P.W.1 in the cash books are incorrect. The cash in the chest never tallied with the cash balance in the cash books. The finding of P.W.1 and the police that there was a shortage of ` 80891/- in the cash chest is absolutely false. The case was not properly investigated. If there had been proper investigation of the case, then there would have been no scope for charge-sheeting him . He never absconded as alleged by the prosecution. He was physically present for interrogation both by the Valapattanam Police as well as the Vigilance Police. Since there was a serious dispute regarding the family property and since he had lost his due share over the same he was not keeping well mentally . He was also undergoing treatment by a physician. For the above reasons he could not attend the office from 15-2-1993 onwards. His absence from duty was not willful. He has not Crl. Appeal No. 192 of 2000 -:6:- committed any offence as alleged and he is innocent. The Trial Court's Verdict 5. The learned Special Judge, after trial, as per judgment dated 21-3-2000 acquitted the appellant of the offence under Section 13 (1) (d) punishable under Sec. 13 (2) of the P.C. Act but found him guilty of the offence under Sec. 13 (1) (c ) read with Sec. 13 (2) of the P.C. Act and Sec. 409 I.P.C. For the conviction under the P.C. Act he was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 80,000/- and on default to pay the fine to suffer rigorous imprisonment for one year. For the conviction under Sec . 409 I.P.C. he was sentenced to rigorous imprisonment for two years. The substantive sentences were directed to run concurrently. THIS APPEAL 6. It is the aforesaid judgment which is assailed in this appeal by the accused. The only point which arises for Crl. Appeal No. 192 of 2000 -:7:- consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT: 7. I heard Adv. Sri. C.S. Manu, the learned counsel appearing for the appellant/accused and Advocate Sri. Venugopal, the learned Public Prosecutor who defended the State. PROSECUTION WITNESESS 8. P.W. 1 (Rajamma Thachan) was the District Educational Officer (D.E.O. for short) , Kannur for the period from 5-12-1991 to 23-6-1993 . She gave Ext.P5 complaint to the Sub Inspector of Police, Kannur . She has detailed the office procedure pertaining to cash dealings. P.W.2 (M. Girija) was a U.D. Clerk in the office of the D.E.O. P.W.3 (Kunhikrishnan ) was the P.A. to the D.E.O. (P.W.1) . P.W.4 (Dhanooja) and P.W. 5 (Prakash Kumar) were U.D. Clerks in the office of the D.E.O. P.W.6 (Balan) was the P.A. to the Crl. Appeal No. 192 of 2000 -:8:- D.E.O. P.W.7 (K.K. Narayanan) was the Accounts Officer in the office of the D.E.O. P.W. 8 (M.P. Rajagopalan Nair ) was the Deputy Director of Education, Kannur who placed the accused under suspension. P.W.9 (Lohithakshan) was the Head Constable of the C.B. C.I. D, Kannur. He proved Ext. P46 Mahazar. P.W.10 (E. Mukundan) was the Junior Superintendent of Kannur Sub Treasury. He was examined to prove the custody of duplicate keys of the Treasury Chest. P.W. 11 (Venugopal) who was the Assistant Sub Inspector of Kannur Town registered Ext. P52 F.I.R. based on Ext.P5 complaint preferred by P.W.1. P.W. 12 (Dominic) who was the Sub Inspector of Police, Valapattanam, registered Crime No. 85/1993 under the caption “man missing” on the complaint lodged by Sugandhi, the wife of the accused. P.W.13 (Sreesukan), who was the Circle Inspector of Police, Kannur conducted the preliminary investigation in this case on 11-5- 1993 at 2 p.m. P.W. 14 (P.A. Valsan) who was the Circle Inspector of Police, Kannur submitted a report on 14-09- Crl. Appeal No. 192 of 2000 -:9:- 1994 to transfer Ext.P52 F.I.R. to the Vigilance Police on discovering that the case was within the jurisdiction of the Vigilance Police. P.W. 15 (A.V. Gopalan) who was the inspector of Police of the Kannur Unit of the Vigilance Department conducted the investigation from 24-08-1996 onwards. He proved Ext.P35 mahazar , Ext.P36 mahazar, Ext.P51 mahazar , Ext.P45 mahazar, Ext.P38 mahazar and Ext.P46 mahazar as per which various documents were seized. He also interrogated witnesses . He also proved Ext.P53 F.I.R. of Vigilance Police Station registered by one Sreedharan . P.W.16 (P.Rajan) who was the Dy.S.P. of Kannur, laid the charge before the Court of the Enquiry Commissioner and Special Judge, Kozhikode on 16-3-1998. He had not conducted any investigation of this case. 9. Adv. Sri.Venugopal, the learned Public Prosecutor representing the State made the following submissions before me in support of the impugned judgment convicting the appellant:- Crl. Appeal No. 192 of 2000 -:10:- Ext.P1 (a) which is page 67 of Ext.P1 Office Order Book Volume II kept in the office of the D.E.O., Kannur shows that the former Junior Superintendent Ravidas was relieved on 10-09-1991 and K.A.Swaminathan (the accused) took charge from Ravidas as the Junior Superintendent . Page 40 of Ext.P1 office order book contains the office order dated 28-12-1989 which has been marked as Ext.P1(b). It contains the duties and responsibilities of the Junior Superintendent and other staff members. It also shows that as on 28-12- 1989, the Junior Superintendent was one Prabhakaran. Ext.P8 main cash book was handled by P.W.5 who was the U.D. Clerk in the office of the D.E.O. Ext.P13 miscellaneous cash book was handled by P.W.2 who was yet another U.D. Clerk in that office. Eventhough P.Ws 2 and 5 were dealing with the cash book, the person who was the custodian of the cash and who was dealing with the cash was the accused, who was the J.S. P.Ws 1 , 2, 5 & 6 have spoken about the procedure with regard to the cash dealings. Going by the evidence of P.W.1 Crl. Appeal No. 192 of 2000 -:11:- on 28-02-1991 three keys were deposited in the Treasury. The cash chest was to be opened using two keys and then the inner safe which was inside the cash chest was to be opened using the third key. The accused last attended the office on 12-2-1993 on which day the accused left the office at 3.p.m. along with the keys. Two keys were with him and one key was in the Treasury. On 12-4-1993 , Sugnadhi, the wife of the accused came to the office of the D.E.O. and told P.W.1 that her husband had sent the keys of the Cash Chest by parcel and enquired whether P.W.1 got it . At that time P.W.1 had not received the parcel. Later in the day, P.W.1 received a parcel by post. Since Sugandhi had told P.W.1 in the morning that the accused had sent the keys by post, P.W.1 did not receive the parcel. Instead P.W.1 requested the postmaster, Kannur, to retain the parcel. After lodging Ext.P5 complaint before the Kannur Town Police, P.W.1 went along with P.W.13, Circle Inspector of Police, Kannur to the post office on 11-5-1993 at 2 p.m. and P.W.13 seized Crl. Appeal No. 192 of 2000 -:12:- Ext.P7 cover in which P.W.1 had received the parcel. He also seized the contents of the parcel namely three keys , a plastic bag and the soap in which the keys were embeded. Ext.P6 is the mahazar. Nobody has stated that both the keys including the one with accused were to be used for opening the safe. Ext. P14 and the evidence of P.W. 15 would go to show that one key is sufficient for opening the safe. Ext.P44 (i) is the reply given by the accused to the memo of charges in the departmental proceedings. There the accused had stated that he was suffering from mental illness. He confessed his thoughtlessness and volunteered to compensate the loss. Since the objection that the Circle Inspector of Police was not competent to conduct the investigation with regard to the offences punishable under the P.C. Act was not raised at the earliest opportunity, it is not open to the accused to contend for the position that a Dy.S.P. of Police should have conducted the investigation as enjoined by Sec. 17(c) of the P.C. Act . (Vide Para 10 of H.N. Rishbud and Another v. State of Delhi - Crl. Appeal No. 192 of 2000 -:13:- AIR 1955 SC 196; and para 3 of Din Dayal Sharma v. State of U.P. - AIR 1959 SC 831). The appellant retired on 30-04- 1996. Cognizance of the offence was taken by the Special Court only on 21-3-1998. Hence, sanction to prosecute the appellant as enjoined by Sec. 19 of the P.C. Act was not necessary since on the date of cognizance, the accused had ceased to be a public servant. Sanction under Sec. 197 Cr.P.C. for the offences under the Indian Penal Code also was not necessary because it is no part of the duty of a public servant to commit offences such as criminal breach of trust or criminal misappriation. Vide Prabash Singh Badal v. State of Punjab - (2007) 1 SCC 1; Kalicharan Mahopatra v. State of Orissa - (1998) 6 SCC 411 ; State of Kerala v. Padmanabhan Nair - (1999) 5 SCC 690 ; Surendra Prasad Varma v. State of Bihar - (1972) 3 SCC 656 ; Vasant Moghe v. State of Maharashtra - (1979) 3 SCC 771 & Krishnakumar v. Union of India - AIR 1959 SC 1390. The conclusion reached by the court below that the appellant while working Crl. Appeal No. 192 of 2000 -:14:- as J.S. and who was in charge of the Cash Chest and its key in the Office of the D.E.O., Kannur, had dishonestly misappropriated government money to the tune of ` 80891/- and thereby committed offences punishable under Sec. 13 (2) read with Sec. 13 (1)(c) of the P.C. Act and Sec. 409 I.P.C., does not call for any interference at the hands of this Court. 10. I am afraid that I am unable to accept the above submissions made on behalf of the prosecution. With regard to the alleged custody of the Cash Chest with the appellant, there is no office order giving charge of the Cash Chest to the appellant. Ext.P1 (b) is the office order No. 21/89 dated 28-12-1989 . It was specifically given to one Prabhakaran who was the Junior Superintendent as on that date. The appellant took charge as Junior Superintendent in that office only on 10-09-1991. There is nothing to show that Ext.P1 (b) office order was either communicated to the appellant or fresh orders were issued giving charge of the Cash Chest to the appellant. Before the appellant can be found guilty for Crl. Appeal No. 192 of 2000 -:15:- abuse of official position or of criminal misconduct for violating the office order, the prosecution should establish that the office order which was violated was communicated to him. (See Sreedharan v. State of Kerala - 2011 (3) KLT SN 6). The appellant took charge from one U.P. Ravidas who was the Junior Superintendent . No office order served on Ravidas also has been produced by the prosecution. The said Ravidas was not examined also. 11. The prosecution wants this Court to hold that the appellant who was employed as the Junior Superintendent was performing the duties of the Cashier. Admittedly, the appellant never maintained the cash book nor had he received cash from any of the parties. Even according to the prosecution, the main cash book was maintained by P.W.5 and the miscellaneous cash book was maintained by P.W.2. Merely because the appellant's initials or alleged tick marks are found in exhibits P8 and P13 cash books it cannot be concluded that he handed the cash. That apart, there is no Crl. Appeal No. 192 of 2000 -:16:- evidence to show that Exts.P8 and P13 cash books were maintained regularly and in the ordinary course of nature. P.Ws 1 ,2, and 5 have admitted that cash for meeting an emergent need used to be taken from the cash chest and the corresponding entries in the cash books were made only thereafter. Going by their evidence, the cash book and the actual cash balance in the treasury chest would never tally. If so, much reliance cannot be placed on Ext.P8 and P13 cash books. (See para 5 of Dadarao v. State of Maharashtra - AIR 1974 SC 388). 12. It cannot be said that the prosecution has succeeded in proving that the appellant had the custody of the cash chest to the exclusion of all others. The evidence in the case would show that P.Ws 1 , 2 and 5 also had access to the cash chest. One key was available with them. Two duplicate keys were deposited in the treasury on 28-02- 1991 as evidenced by Ext.P14 register. The accused took charge only on 10-09-1991. One key was with the accused. Crl. Appeal No. 192 of 2000 -:17:- Another key was with the D.E.O. (P.W.1) . There is evidence to show that during the absence of the accused, P.W.1 and others had access to the cash chest and had taken cash . Ext.P49 custody register would show that two keys were taken back from the treasury on 19-6-1993 and were re- deposited on 29-6-1993. At the time of re-depositing the keys there were three keys which will show that one key was available with the D.E.O. The contention of the prosecution is that the chest could be opened with one key. P.W.15 the Investigating Officer admits that three keys were re- deposited . One key was with P.W.1. P.W.25 has admitted that he did not conduct any investigation regarding the key which was not deposited on 28-2-1991. Ext.P42 mahazar mentions that the chest was opened using one large key. P.W.5 the U.D. Clerk who was maintaining Ext.P8 main cash book has admitted that besides cash, drafts, pass books etc. were also kept in the chest and that the drafts etc. were handled by the respective staff in the concerned Sections. Crl. Appeal No. 192 of 2000 -:18:- P.W.2 has also admitted this. Thus, other staff members also had access to the cash chest. Moreover the evidence is to the effect that during the days when the appellant was not present in the office the D.E.O. used to open the cash chest through some staff members with the key which was with the D.E.O. This means that on the request of the D.E.O. other staff members who opened the cash chest had access to the contents of the cash chest. 13. There is no specific charge that there was entrustment of cash to the appellant. The charge was only that the appellant was in-charge of the cash chest. When there is no evidence to show that the appellant was having exclusive custody of the cash chest , and on the contrary, the evidence would indicate that other staff members had opportunity to open the chest, it cannot be said that the appellant was entrusted with property or that he had dominion over property in his capacity as a public servant. When two keys were taken back from the treasury on 19- Crl. Appeal No. 192 of 2000 -:19:- 06-1993 as evidenced by Ext.P49 and when the keys were re-deposited in the treasury on 29-06-1993 there were three keys, it follows that one key was remaining out and presumably in the custody of the D.E.O. No investigation appears to have been conducted regarding that key. According to the appellant, he was operating the chest with one key only and the other key was with the D.E.O. (P.W.1). When P.W.14 opened the safe he found a key in a tin box and it was using that key that he opened the chest. This shows that the appellant was not having exclusive custody of the cash chest. 14. In addition to the above circumstances, there is also the further circumstance that , the entire investigation was conducted by a Circle Inspector of Police in blatant violation of Sec. 17 ( c) of the P.C. Act. It is true that P.W.15 who charge-sheeted the appellant is a Dy.S.P. But then, the only role performed by him was to lay the charge and he did not conduct any investigation. Even after the case was Crl. Appeal No. 192 of 2000 -:20:- transferred to the Vigilance Department where it was re- registered as Crime No. 2 of 1996 as evidenced by Ext.P53 F.I.R. the investigation was continued by a Circle Inspector of Police. It was a defective investigation. Vide Munnalal v. State of U.P. - AIR 1964 SC 28; Jacob v. S.I. of Police - 2003 (3) KLT 718; Easwaramoorthy v. State - 2002 (2) KLT SN.19 (Madras) & State of M.P. v. Veerendra Kumar Tripathy - (2009) 15 SCC 533. 15. The absence of the accused after 3 p.m. on 12- 2-1993 was due to the mental anguish and turmoil as a result of certain family disputes. A share in his ancestral property was denied to him and naturally that had resulted in his mental derailment. Since he had to remain absent for a period of about two months he despatched the solitary key which was with him to the D.E.O. P.W.1 who was having one key in her custody was obviously interested in exculpating herself. Hence, the evidence to the effect that three keys were despatched by the appellant by post and P.W.1 accepted the Crl. Appeal No. 192 of 2000 -:21:- parcel only in the presence of the Circle Inspector (P.W.13) as evidenced by Ext.P6 mahazar looks artificial and concocted. No person who had misappropriated cash from the treasury chest would ordinarily remain absent and return only to be accused of having misappropriated money. Hence, the mere unauthorised absence of the appellant from his office does not indicate any guilty conduct. It probably points to his anxiety and chagrin due to the family disputes which were vexing his mind. It is pertinent to note that the appellant was missing from his home as well as evidenced by Ext. P47 F.I.R. 15. The conviction entered by the Special Judge overlooking the above vital aspects of the matter cannot, therefore, be sustained and the same is dislodged. The prosecution has failed to establish that the exclusive duty of dealing with the cash in the cash chest was on the appellant, that the cash books were regularly kept in the ordinary course of business, that there was entrustment of cash with the Crl. Appeal No. 192 of 2000 -:22:- appellant so as to saddle him with the duty to account for the cash and that the appellant had committed criminal breach of trust or criminal misconduct by dishonestly misappropriating government money to the tune of ` 80,891/- or any other amount by corrupt or illegal means. The conviction entered and