IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 CRL.A.No. 318 of 2003() ---------------------------- CC.16/1999 of ENQUIRY COMMISSIONEER & SPECIAL COURT, THRISSUR .................... APPELLANT(S): ACCUSED NO.1: ------------------------------------- WILSON J. MANGALAM, MANGALATHIL, PULIYANNUR, PALAI. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT(S): COMPLAINANT: --------------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.ALEX MATHEW THOMRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2011, ALONG WITH CRA NO. 325 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs (CR) P.S.GOPINATHAN, J. ====================== Crl.A. Nos.318 & 325 of 2003 ====================== Dated this the 16th day of March, 2011. COMMON JUDGMENT The appellant in Crl.Appeal No.318 of 2003 is the first accused in C.C.No.16 of 1999 on the file of the Enquiry Commissioner and Special Judge, Thrissur. The second accused is the appellant in Crl.Appeal No.325 of 2003. PW.14, the Deputy Superintendent of Police attached to Vigilance and Anti Corruption Bureau, Ernakulam, filed the charge sheet against the appellants alleging offences under Section 13(1) (c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act') and Section 409 r/w 34 IPC. It was alleged that the first accused was working as Senior Assistant Grade-I and the second accused was working as Assistant Manager at the Taluk Depot of the Kerala State Civil Supplies Corporation, Kochi and as such they are public servants as defined under Section 2(C) of the P.C Act. Kerala State Civil Supplies Corporation was having retail sales of various essential commodities including Palmolien. The first accused was the custodian of the Palmolien and relevant records. The second accused was having supervisory authority over the functioning of Crl.A. Nos.318 & 325 of 2003 2 the Taluk Depot. On 27.9.1990, two lorry loads of Palmolien were received in the Depot accompanied by Exts.P5 and P6 goods received sheets(GRS). As per Ext.P5, 125.75 Qtls. of Palmolein was received in the Depot. It was taken stock and duly accounted. As per Ext.P6 (GRS 627/7) 125.10 Qtls. of Palmolein was transported in lorry bearing registration No.KER 3990. Though the first accused acknowledged the receipt of the Palmolein in Ext.P6 that was not accounted in the stock register which was marked as Ext.P7 or in the daily stock-cum-sales return (DSSR) and that quantity of Palmolein worth Rs.1,80,769.40/- was misappropriated and thereby committed breach of trust and had got undue pecuniary advantage and that to facilitate the misappropriation, the daily stock-cum-sales return and the stock register, were falsified by omitting to record the stock. 2. The transactions at the Taluk Depot were audited by PW3 on 3.5.1991 and 4.5.1991. Ext.P4 is a special report submitted by PW3 regarding the misappropriation of the commodities including Palmolein. Basing upon Ext.P4, a case was registered against the first accused by PW11, the then Deputy Superintendent of Police for which Ext.P25 First Information Report was prepared for offences under Section 13(1) (c) and (d) read with Section 13(2) Crl.A. Nos.318 & 325 of 2003 3 of the PC Act and Section 409 IPC. The investigation was taken over by PW.13, which was completed by PW.14 and filed a charge sheet before the trial court against the appellants for the above offences r/w 34 IPC. The learned Special Judge took cognizance and issued process responding at which the appellants entered appearance. After furnishing the copies of the final report and connected records, they were heard. On finding that there are materials to send the appellants for trial for offences under Section 13(1)(c) and (d) of PC Act 1988 r/w 13(2) and under Section 381, 403, 409, 420, 468, 471 and 477A r/w Section 34 IPC, a charge was framed. When read over and explained the appellants pleaded not guilty. Hence, the appellants were sent for trial. On the side of the prosecution, PWs.1 to 14 were examined and Exts.P1 to P33 were marked. After closing the evidence for the prosecution the statement of the appellants under Section 313 (1) (b) of the Code of Criminal Procedure were recorded. The appellants admitted there official status. The receipt of Palmolein by Ext.P6 was not disputed, but they took up a defence that they are innocent and they had not committed any offence as alleged. The first accused, responding to the call to enter his defence, examined DWs. 1 to 3. On the side of the Crl.A. Nos.318 & 325 of 2003 4 defence Exts.D1 to D7 were marked. The second accused didn't adduce any evidence. The learned Special Judge after hearing either side and perusing the evidence on record arrived at a finding that the prosecution had succeeded to establish offences under Sections 13(1) (c) and (d) r/w 13(2) of the PC Act and under Sections 409, 468 and 477A r/w 34 IPC. For offences under Sections 381, 403, 420 and 471, the appellants were found not guilty. Consequently they were acquitted for the said offfences. After hearing either side regarding sentence for the offences for which the appellants were found guilty, the learned Special Judge sentenced the appellants to undergo rigorous imprisonment each for 4 years for offences under Section 13(1) (c) and (d) r/w 13(2) of the PC Act. For offence under Section 13(1) (c) r/w 13(2) a fine of Rs.1,50,000/- was also imposed. For offences under Sections 409, 468, and 477A IPC, the appellants were sentenced to rigorous imprisonment for two years each with order to run the substantive sentences concurrently. Assailing the above conviction and sentence, these appeals were preferred. 3. I heard Adv.Shri.B.Raman Pillai appearing for the first accused and Adv.Shri.Sojan Micheal appearing for the second accused, and Shri. Alax Mathew Thomra the learned Public Crl.A. Nos.318 & 325 of 2003 5 Prosecutor and perused the evidence on record as well as the judgment impugned. 4. As mentioned earlier, the appellants didn't dispute the status as public servant. The Official Status is proved by testimonies of PWs.7 and 8. PW1, the Director of Civil Supplies, though speak about Ext.P1 order whereby sanction was accorded to prosecute the appellants, didn't speak about the official status of the appellants. PW3, the auditor had identified the signature of the 1st accused and Ext.P16, his charge report. But regarding the official status of the appellants there is no mention in his evidence. PW4 is a Senior Assistant who assisted PW3 in the audit. PW5 is yet another Assistant from whom the 1st accused took charge for which Ext.P16 charge report was prepared and attested by PW5 and the 1st accused. But he had not specifically mentioned about the official status of the 1st accused. Though PW5 would depose that the 2nd accused is known to him, there is no mention about the official status of the 2nd accused. PW7, another Senior Assistant had deposed that the 1st accused was working as Senior Assistant Grade II and that Ext.P6 GRS was prepared and signed by the 1st accused. PW8, another Assistant Manager had deposed that during his tenure the 1st accused took Crl.A. Nos.318 & 325 of 2003 6 charge in the Taluk Depot and in Ext.P16 he had countersigned after PW5 and that the 1st accused signed it and that the 2nd accused took charge as Assistant Manager from PW8 and that Ext.P21(b) is the charge handover report signed by the 2nd accused and himself. The evidence of PW7 and 8 regarding the official status of the appellant was not at all challenged in cross examination. The defence evidence also would reveal the status of the appellants. The evidence of PW1 would show that Ext.P1 order was issued according sanction to prosecute the appellants for the above said offences. Therefore, concurring with the lower court, I find that the appellants are public servants and they were prosecuted with due sanction. 5. PW5, would depose that on 21.4.1990, the first accused took charge from him and that Ext.P16 is the charge handing over report. Ext.P19(a), the office order dated 20.8.1990 would show that the first accused was in charge of the Palmolein. Acknowledging the taking charge of the Palmolein, the first accused had endorsed by his signature. The evidence of the prosecution that the first accused was in charge of the Palmolein and connected records were not at all disputed. The fact that the first accused joined duty on 21.4.1990 and he took charge Crl.A. Nos.318 & 325 of 2003 7 from PW5 was also deposed by PW8, then Assistant Manager who had counter signed in Ext.P16. The evidence of PW5 and PW8 coupled with Ext.P16 and 19(a) would show that PW5 was in charge of the Palmolein and on 16.8.1990, the second accused took charge from PW5. 6. As mentioned earlier the disputed quantity of the Palmolein was received in the Depot on 27.9.1990. The above evidence of PWs.5 and 8 coupled with Exts.P16, P21(b) and Ext.P6 would show that as on the date of the receipt of the Palmolein in dispute covered by Ext.P6, the appellants were working as Senior Assistant as well as Assistant Manager in the Depot. 7. The evidence of PW7, the Senior Assistant Grade II would show that the first accused acknowledged the disputed quantity of Palmolein as per Ext.P6. Ext.P17(a) is the counter foil of the same. The evidence of PW10, a helper would show that the Palmolein lorry bearing registration No.KER 3990 was weighed at Chemmanam Weigh Bridge before unloading the oil and thereafter, the lorry was sent to the Depot and after unloading, the lorry was weighed for which Ext.P8 weighment certificate was obtained. The evidence of PW7 that Palmolien covered by Ext.P6 was acknowledged by the 1st accused is corroborated by Ext.P17 Crl.A. Nos.318 & 325 of 2003 8 (a) and the testimony of PW10 and Ext.P8. The above evidence was not challenged in cross examination. I find no reason to reject the above evidence. In the light of the above evidence, I find that regarding the taking of the Palmolien in dispute covered by Ext.P6 there is cogent evidence. Therefore, I concur with the finding of the lower court in that aspect. The very consistent case of the prosecution is that Palmolein received as per Ext.P6 was fraudulently and dishonestly not recorded in Ext.P17 stock register as well as in daily stock cum sales return on the date of receipt or any date thereafter. It was omitted only to facilitate the misappropriation. The defence has no case that the said quantity of Palmolien covered by Ext.P6 was accounted either in the stock register or in the daily stock cum sales return. Whereas the case of the first accused is that it was not he who was recording the stock in the stock register or in the daily stock cum sales return. Though it is mentioned that the 1st accused had no duty to make entries in the stock register or daily stock cum sales return, there is nothing to suggest that someoneelse was duty bound. Of course, it is revealed that on occasions some assistants had made entries. But the 1st accused, who was in charge of Palmolein and who had acknowledged the goods, Crl.A. Nos.318 & 325 of 2003 9 cannot escape the liability to make entries in the stock register and daily stock cum sales return which were also in his custody. According to the second accused he has no duty to record the same and he had only supervisory charge and on the basis of the materials furnished the monthly statement was prepared by the Assistant which was signed by him and sent to the head office. The question then remains is whether the said quantity of Palmolien was misappropriated by the appellants or not after falsifying the accounts. Regarding the misappropriation of the Palmolien by the appellants there is no direct evidence. 8. Ext.P16 would show that when the first accused took charge from PW5, the quantity of Palmolein handed over was 86.96 Qtls. According to PW5, the charge was handed over after physical verification of the stock and that the first accused had acknowledged the same. On the other hand, the defence contention is that there was no physical verification of the goods and that only book balance was acknowledged by the first accused. Whatever it be, so long as there is nothing to show that the Palmolien stock was less than book balance, it is to be inferred that at the time when the 1st accused took charge, there was no shortage. If the 1st accused had a case that there was Crl.A. Nos.318 & 325 of 2003 10 shortage or the book balance was not correct, he wouldn't have taken charge without physical verification. There is nothing to show that there was any impediment in having a physical verification of the stock while the first accused assuming charge. Therefore, if the 1st accused had not physically verified the stock, what is inferable is that the 1st accused had no doubt about the correctness of the book balance. Once the stock is acknowledged it is the burden of the 1st accused to account it. If fails, he cannot escape from the liability. 9. The evidence of PW3 would show that in connection with the auditing, the stock was physically verified and as on 4.5.1991 the physical stock of Palmolien was 23.535 Qtls. (good variety 7.544 Qtls. and bad variety 15.99 Qtls.). Annexure-1 of Ext.P4 would contain the stock verification report. The stock verification was conducted in the presence of the first accused for which the first accused had affixed his signature in Ext.P4(a) and P4(b) annexures. The cross examination of PW3 would show that the physical quantity noted by PW3 at the time of audit was not at all challenged in cross examination. PW3 had further deposed that 125.10 Qtls. of Palmolien received by Ext.P6 goods received sheet was not at all accounted in the monthly stock cum sales return, Crl.A. Nos.318 & 325 of 2003 11 copy which was marked as Ext.P9 containing the signature of the 2nd accused. Ext.P4 is the special report regarding the misappropriation of Palmolien. Ext.P4 would show that opening stock of Palmolien on 22.4.1990 was 86.37 Qtls. (61.465 Qtls. good and 24.905 Qtls. bad and inferior). The receipts from 22.4.1990 to 30.4.1991 was 6,662.86 Qtls. The release during the said period was only 6,543.95 Qtls. On that basis PW3 arrived at a conclusion that the closing balance as on 30.4.1990 would be 205.28 Qtls. and thus shortage was found out. PW3 arrived at a finding that the stock was short by 181.745 Qtls. of which 125.1 Qtls. is covered by Ext. P6 which was not at all accounted by the first accused in the stock register and in the daily stock cum register. So also, the second accused had not accounted the same in the monthly sales-cum-stock register. The evidence of PW3 supported by Ext.P4 regarding the stock position could not be impeached in cross examination. Therefore, it can be safely concluded that on 4.5.1991 when the physical stock was verified in connection with the audit, there was shortage of 181.745 Qtls. Of Palmolien. 10. The learned counsel for the first accused advanced a contention that the storage tanks were leaking and that Crl.A. Nos.318 & 325 of 2003 12 Palmolien was lost by leakage of the tanks and that since the first accused took charge by the book balance the conviction based on physical balance is not sustainable. He would also rely upon the evidence of DW1, the then Junior Superintendent who had deposed that at the time of handing over charge the stock was not physically verified. The learned counsel has further relied upon the evidence of PW.8, who had counter signed Ext.P16, that he was not aware as to whether there was physical verification of the stock. In the light of the evidence of PW5, the evidence of DW1 and the argument of the learned counsel deserves no consideration. PW5 had specifically deposed that when the first accused took charge from him the stocks were physically verified and that as against the book balance of 86.96 Qtls, the physical balance was 72.16 Qtls. Though PW5 was subjected to searching cross examination that too, twice, no material was disclosed to disbelieve him. His evidence inspires confidence. Therefore, relying upon the evidence of PW5, I find that the 1st accused took charge of Palmolien after physical verification. Even if it is assumed that there was no physical stock verification and that there was no physical stock amounting to 72.16 Qtls. as on the date of charge even then there would be a shortage of palmolien Crl.A. Nos.318 & 325 of 2003 13 which the first accused is bound to account because the shortage found in the audit is 181.745 Qtls. 11. The learned counsel for the first accused also submitted that there might be chances for omitting some of the release orders while PW3 auditing. Going through the lengthy cross examination of PW3, I find no such suggestion made to PW3. Therefore, that argument is devoid of merits. The learned counsel further submitted that though the first accused had applied for the production of the release orders and certain other documents through DW2, the documents were not produced. The learned counsel had also submitted that Ext.P4 is only a special report and that the prosecution has not at all produced the audit report. Going by Ext.P4, I find that as submitted by the learned counsel, it was not the audit report but a special report on the misappropriation of the stock of commodities including the Palmolien. But the credibility of Ext.P4 is not lost for the non- production of the audit report. Going by the evidence of PW3 and Ext.P4, I find that the defence had not at all succeeded to impeach the veracity of the evidence of PW3 or Ext.P4 report. In Ext.P4, PW3 who had withstood the cross examination had given detailed reasoning for arriving at a conclusion regarding the Crl.A. Nos.318 & 325 of 2003 14 shortage of stock. Since the evidence of PW3 could not be impeached in cross examination and no reason was disclosed to reject Ext.P4 special report, I find that the failure to produce the audit report is not at all relevant and not a reason to interfere with the finding of the Special Judge regarding the shortage of the Palmolien. 12. As stated earlier the disputed quantity of Palmolien covered by Ext.P6 was taken stock on 27.9.1990. PW3 conducted audit on 3.5.1991 and 4.5.1991. In the intermittent period there were taking stock of the Palmolien and releases. Though it is revealed that the storage tank had some leakage even by the evidence of the defence witnesses it is not revealed that there was enormous leakage, so that the disputed quantity of the Palmolien was lost. Therefore, I find that the appellants cannot take shelter on the plea of leakage of the tanks. 13. The learned counsel for the first accused submitted that the releases of Palmolien were effected by the helpers and there is every chance for pilferage by the helpers and other staff attached to the office. It was also submitted that there was no lock for the valves of the tank and that the first accused was put on duty at other outlets and that the pilferage of the Palmolien Crl.A. Nos.318 & 325 of 2003 15 during his absence in the office cannot be ruled out. It is curious to note that the first accused has no such version when the statement was recorded under Section 313 (1) (b) of the Code of Criminal procedure. But the consistent case was that there was no physical verification of the stock at the time of taking charge and that there was leak in the tank. It was also argued by the learned counsel for the first accused that key of the store wherein Palmolien was kept was in the possession of the helpers. Such a suggestion was made to PW3. He had denied the same and stated that helpers were in possession of the key of the office alone. The learned counsel further submitted that the release of the Palmolien was by pumping out with motor and it could be done from the office. Regarding that also there is no suggestion to any witness or any whisper in the statement of the first accused while the statement was recorded under Section 313 (1) (b) of the Code of Criminal Procedure. It was further submitted by the learned counsel for the first accused that the office system was in such a manner that any person could commit pilferage in the absence of the first accused. I find little merit in the submission made by the learned counsel for the first accused. It is not disputed that the first accused was in charge of the Palmolien. In Crl.A. Nos.318 & 325 of 2003 16 the event there was any such possibility for such pilferage the first accused should have brought the same to the notice of the higher authorities and adopted appropriate remedial measures to preserve the stock. The contention that the first accused who was in charge of the Palmolien could not take care of the article entrusted to him because of the manner in which the system was functioning is devoid of any merit. There is nothing revealed out in evidence that the first accused had at any time brought to the notice of the authorities that there was any chance for such pilferage. It is also crucial to note that to PW5, from whom the first accused took charge, there was no suggestion that the system was so maintained in the office that there was chance for pilferage or that at any time during the tenure of PW5, such pilferage had taken place. In the above circumstances, I find little merit in the submission regarding pilferage by the helpers or any other staff. 14. Regarding the omission to make entries in the stock register and the daily stock cum sales register, it is the case of the first accused that the following three days after the receipt of the stock were holidays and he had gone for pilgrimage and that some other assistance were making entries in the stock register Crl.A. Nos.318 & 325 of 2003 17 as well as in daily stock cum sales return and that the omission might be on their side. The officer order by which the first accused was put in charge of the stock would show that he was also the custodian of the relevant registers. It is for him to explain why such entries were not made in the stock register as well as in the daily stock cum sales register. In the event some other persons were making entries for and on behalf of the first accused who was in charge of the stock and registers, it was for the 1st accused to see that the entries regarding the taking of stock were correctly recorded in the relevant registers. The first accused cannot escape from the liability to account the stock by stating that some other staff members were also making entries in the stock register and daily stock-cum-sales register. The failure to maintain relevant registers and records by the public servant and thereby giving room for missing of properties also would amount to abuse of office to constitute offence under Section 13 of the PC Act. If a person in custody of the registers and responsible to maintain the registers allowed another person who was not responsible to account the goods or to make entries in the manner that person likes or omit to make entries that also would amount to abuse of the office. Rather than the omission to Crl.A. Nos.318 & 325 of 2003 18 make entries in the stock register or in the daily stock cum sales return the shortage of the stock