IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No. 645 of 2000() ----------------------- C.C.10/99 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR ----------------------- APPELLANT/ACCUSED: -------------------------- K.G.SREEKUMAR, L.D.CLERK (H.G.) PUBLIC HEALTH INVESTIGATION, PLANNING AND DESIGN DIVISION, CIVIL STATION, MALAPPURAM. BY ADV. SRI.M.J.THOMAS RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008,ALONG WITH CRL.A.No.649/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.Nos.645 & 649 of 2000 ========================== Dated this the 27th day of February, 2008 JUDGMENT These two appeals are directed against the common judgment passed by the Enquiry Commissioner and Special Judge, Thrissur in C.C.10/99 and C.C.17/99. 2. Vigilance and Anti Corruption Bureau, Ernakulam Unit had charge sheeted the common appellant/accused in these two cases for the offences punishable under Sections 5(1) (c), (d) read with Section 5 (2) of P.C. Act, 1947 (for short the Act) and also under Sections 409, 420, 471 and 477A I.P.C. The appellant/accused passed away during the pendency of these appeals and on a motion made by his wife, this Court has allowed her to prosecute the appeal. 3. The accused was working as a Lower Division Clerk at the Water Works Sub Division, Pallimukku, Kochi. In C.C.10/99 it was alleged that during the period between December 5, 1986 and December 2, 1987, the accused committed criminal misconduct by dishonest and fraudulent misappropriation of a sum of Rs.16,148.85/- being the revenue collection at the office Crl.A.Nos.645 & 649 /2000 2 by falsification of accounts, forging documents and using the forged documents as genuine knowingly and abusing the official position as public servant by corrupt and illegal means. 4. In C.C.17/99, the allegation was that he had misappropriated a sum of Rs.23,513/- during the period from January 8,1988 to August 3, 1988 while he was working as LD clerk at Water Works Sub Division, Pallimukku. 5. The two cases were tried jointly. The prosecution examined PWs.1 to 6 and Exts.P1 to P41 were marked. The defence did not adduce any oral evidence, but Exts.D1 and D2 were marked on his side. 6. In C.C.10/99, the learned Special Judge found the accused guilty under Section 5 (1) (c) read with Section 5 (2) of the Act, and convicted and sentenced him to undergo rigorous imprisonment for four years and to pay a fine on Rs.25,000/- and in default to undergo rigorous imprisonment for one year. Under Section 5 (1) (d) read with Section 5 (2) of the Act, the accused was found guilty and convicted and sentenced to undergo rigorous imprisonment for four years. He was also Crl.A.Nos.645 & 649 /2000 3 convicted and sentenced under Section 409 I.P.C to undergo rigorous imprisonment for four years and under Section 477 A I.P.C the accused was convicted and sentenced to undergo rigorous imprisonment for two years. The substantial sentence of imprisonment was directed to run concurrently. 7. In C.C.17/99 the accused was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.40,000/- and in default to undergo rigorous imprisonment for one year under Section 5 (1) (c) read with Section 5 (2) of the Act. Under Section 5 (1) (d) read with Section 5 (2) of the Act, the accused was convicted and sentenced to undergo rigorous imprisonment for four years. The accused was also found guilty under Sections 409 and 477 A I.P.C. and he was accordingly convicted and sentenced to undergo rigorous imprisonment for four years and two years respectively. Set off under Section 428 of the Code of Criminal Procedure was allowed in the two cases. 8. Heard learned counsel for the accused and the learned Public Prosecutor. Crl.A.Nos.645 & 649 /2000 4 9. As mentioned earlier, the accused had passed away during the pendency of these two appeals. His wife is now prosecuting these two cases. According to the learned counsel the accused was imposed with a fine of Rs.25,000/-and Rs.40,000/- respectively in the two cases. Learned counsel has pointed out several flaws and weak links in the prosecution case which, according to him, would have entitled the accused to get a clean acquittal. But as rightly pointed out by the learned counsel, on the death of the accused the entire charge has abated. What remains is only the direction to the accused to remit a total sum of Rs.65,000/- as fine in the two cases. It is submitted by the learned counsel that the widow and two children of the accused are in total penury. The accused had been dismissed from service sometime during 2001 and the family of the accused is finding it very difficult to pull on. 10. It is on record that the accused had remitted the entire amount (Rs.39,661.85) which was allegedly misappropriated by him. The learned Special Judge had adverted to the above fact in Paragraph 11 of the judgment. Crl.A.Nos.645 & 649 /2000 5 Ext.P40(a), the receipt, evidencing payment of the entire amount was also taken into account by the learned Judge while disposing of the cases. Learned counsel submits that the appellant had deposited 50% of the fine amount in the two cases as directed by this Court at the time when the order of sentence was suspended in the two appeals. Though the learned counsel has made a fervent plea to allow the wife to withdraw the said amount in the changed circumstances, I am not satisfied this is a fit case in which such a previlage can be given. However it is made clear that the amount of fine deposited already shall be treated as the fine in the two cases and no further recovery shall be effected. The appeals are closed since the charge against the accused has abated consequent on his death. A.K.BASHEER,JUDGE dvs