IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 Crl.Rev.Pet.No. 453 of 2001(A) ------------------------------ CRA.39/1996 of I ADDL. SESSIONS COURT, PALAKKAD CC.117/1990 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER: --------------------- K.V.SUBRAMANIAN, S/O.VENKITESWARAN, MULLAKKAL VILLAGE, KAVASSERI. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S.I. OF POLICE, ALATHUR. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.453 of 2001 ---------------------------------------- Dated this the 15th day of September, 2009 ORDER The revision petitioner is the accused in C.C.No.117/90 on the file of the Judicial Magistrate of First Class, Palakkad. The learned magistrate after a due trial, convicted the revision petitioner for offence under section 409 I.P.C. and sentenced to simple imprisonment for one year. In appeal First Additional Sessions Judge, Palakkad confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence concurrently found, this revision petition was filed. 2. The material facts leading to the prosecution are that the revision petitioner was working as cashier in Kunissery Collection Centre under Alathur section of the Kerala State Electricity Board. PW.1 is the Assistant Executive Engineer. On 30/12/1988 it was brought to the notice after a preliminary enquiry that the revision petitioner had misappropriated Rs.6454.75. Accordingly PW.1 lodged Ext.P1, First Information Crl.R.P.No.453 of 2001 2 Statement before the Alathur Police Station. After recording Ext.P1, a case as Crime No.42/89 for offence under section 409 I.P.C. was registered against the revision petitioner by Ext.P1(a), First Information Report. After due investigation the Assistant Sub-Inspector filed a final report accusing the revision petitioner for offence under section 409 I.P.C. 3. The learned Magistrate issued process to the revision petitioner. When he entered appearance, after furnishing the copies and hearing the prosecution and the revision petitioner, a charge was framed for offence under section 409 I.P.C. When it was read over and explained the revision petitioner pleaded not guilty. Hence he was sent for trial. 4. On the side of the prosecution Pws.1 to 18 were examined and Exts.P1 to P12 were marked. After closing the evidence for the prosecution the revision petitioner was questioned under section 313 of the Code of Criminal Procedure. He took up a defence that he didn't commit any offence and that the case was foisted because of the organisation dispute. However no defence evidence was let in. On appraisal of the Crl.R.P.No.453 of 2001 3 evidence the revision petitioner was convicted. 5. According to the learned counsel for the revision petitioner the courts below failed to appreciate the evidence, and that absolutely there is no evidence to arrive a conclusion that the revision petitioner was entrusted with the money that was alleged have been misappropriated or that he had received the amount in dispute and that there was no occasion for misappropriation and that the conviction was mainly based upon Ext.P2, a copy of Inspection Report prepared by PW.2, a Senior Superintendent, and that other than the fact that the revision petitioner has been working as cashier during the period in dispute, there is no material to implicate the revision petitioner with the offence alleged. I was taken through the evidence of the relevant witnesses. The learned public prosecutor was also heard. 6. In the charge sheet it is mentioned that there is breach of trust amounting into Rs.20181.59. That allegation is based upon Ext.P2. Going through Ext.P2 and the evidence of PW.2 it is revealed that Ext.P2 report is based upon Ext.P3 Crl.R.P.No.453 of 2001 4 demand statement and Ext.P5 cash book. The following is the abstract of the Ext.P2 report:- A B S T R A C T I. Amount collected but not accounted. : Rs.16,422-60 II. Amount short accounted : 171-44 III. Broken collection. : 296-00 IV. P.W. receipts missing : 3,127-55 V. Tampering of receipts : 164-00 ---------------- 20,181-59 ======= The evidence of PW.2 did not tally with the above abstract. In her evidence she had mentioned 10 instances of misappropriation which were marked as Ext.P3 (a), (b), (c), (d), (e), (f), (g), (h), (i) & (j). The total amount of the 10 items would come to Rs.2531.16 only. According to PW.2, those 10 entries in Ext.P3 demand statement were not made in the cash book and there is no remittance and that those amounts were misappropriated by the cashier. Though PW.2 would mention about the 10 entries, her evidence is silent as to who exactly made those entries. The prosecution has not cared to identify Crl.R.P.No.453 of 2001 5 the handwriting in the above entries. So also there was no attempt to identify the handwriting in the Ext.P5 cash book on the particular days in which Ext.P3(a) to P3(j) transactions were said to have occurred. In Cross-examination it is revealed that one of the entries in Ext.P3 relates to Ext.P4 series. On cross checking it is revealed that Ext.P4 series contains 3 receipts. Those receipts are dated 15/4/1988, 15/5/1988 & 20/8/1988 for Rs.268.80, Rs.280.50 & Rs.268.80 respectively. It is seen that Ext.P3 (e) is relating to the receipt dated 15/5/1988. But, PW.2 had admitted that the amounts covered by Ext.P4 series were remitted in the bank. That admission would show that in fact the amount covered by Ext.P4 series is not at all misappropriated. It is pertinent to note that the evidence on record is silent as to in whose handwriting Ext.P4 series were made. 7. Yet another account of misappropriation is regarding a sum of Rs.298.10, the entry of which is identified as Ext.P3 (j). According to the prosecution, that amount was remitted by PW.9 for which Ext.P7 (a) receipt was issued. But in the cash book that amount was omitted and only the balance for the day was Crl.R.P.No.453 of 2001 6 remitted. As I mentioned earlier there is no evidence as to who in fact issued Ext.P7(a) receipt or as to who actually received the cash amount. Unless it is brought out in evidence that the said receipt was issued by the revision petitioner or that he had received the said amount he can no way be found guilty for misappropriating the said amount. 8. The evidence relating to the transaction covered Ext.P3 (a), (b), (c), (d), (f), (g), (h) & (i) are also not different. The evidence of PW.2 is silent as to who exactly made entries in Ext.P3 (a) to Ext.P3 (j) or as to whether the amount covered by those entries were remitted by consumer or that such amount were acknowledged by the revision petitioner. Unless there is evidence to show that those amounts were acknowledged by the revision petitioner in trust for and on behalf of the Electricity Board he cannot be found liable for offence under section 409 I.P.C. It appears that the courts below had blindly relied upon Ext.P2 and the revision petitioner was found guilty for the reason that he was the cashier in the section concerned during the relevant period. The courts below omitted to note that there is Crl.R.P.No.453 of 2001 7 no whisper in the evidence on record that the amounts said to have been misappropriated by the revision petitioner has actually received by him. In case Ext.P3 series entries were proved to be made by the revision petitioner, it would have been presumed that the revision petitioner received the said amount. But there is no evidence to that effect. In the absence of evidence to show that the amounts said to have been misappropriated by the revision petitioner is actually received by him, he cannot be convicted for the reason that he was cashier at the relevant period. His personal presence on the relevant dates and receipts of the amount by him and entries in the relevant registers are the crucial aspects. Regarding that, there is lack of evidence. In the circumstance, it had to be held that the prosecution had not succeeded to prove the guilt beyond the shadow of doubt. Hence the conviction under challenge is not sustainable and is liable to be set aside. In the result the revision petitioner succeeds. While allowing revision petition, the conviction and sentence impugned Crl.R.P.No.453 of 2001 8 are set aside. The revision petitioner would stand acquitted and set at liberty. P.S.GOPINATHAN, JUDGE skj.