IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 CRL.A.No. 816 of 2000(D) ----------------------------------- CC.24/1999 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT / ACCUSED IN THE COURT BELOW: ----------------------------------------------------------------------- JOSE MATHEW FORMER ASSISTANT ENGINEER (STORES) KERALA AGRICULTURAL UNIVERSITY VELLANIKKARA MANNUTHY THRISSUR BY ADV. SRI.P.VIJAYA BHANU SRI.V.C.JAMES SMT.P.MAYA RESPONDENT / COMPLAINANT IN THE COURT BELOW: ---------------------------------------------------------------------------------- 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 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.816 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July 2008 JUDGMENT Appellant was tried before the Enquiry Commissioner and Special Judge, Thrissur for the offence punishable under Section 5(1)(c) and (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and also under Sections 409 and 477 A IPC. The trial court found the appellant guilty of the charges levelled against him and he was accordingly convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.7 lakhs under Section 5(1)(c) read with Section 5(2) of the Act. In default of payment of fine, the appellant was directed to undergo simple imprisonment for 1½ years under Section 5(1) (c). Appellant was further sentenced under Section 5(1)(d) read with Section 5(2) of the Act to undergo rigorous imprisonment for four years. He was also sentenced to undergo rigorous imprisonment for 4 years under Section 409 and 2 years rigorous imprisonment under Section 477 A IPC. It was directed that the substantive sentence of imprisonment shall run concurrently. Crl.A.No.816 OF 2000 :: 2 :: Set off was also allowed under Section 428 of the Code of Criminal Procedure. The above order of conviction and sentence is under Challenge in this appeal. 2. At the very outset, it has to be noticed that the appellant is reportedly dead. But the wife and children of the deceased/appellant has obtained leave of this court to prosecute the appeal obviously for the reason that the deceased/appellant was imposed with a fine of Rs.7 lakhs. 3. I have heard learned counsel for the appellant and Sri.P.N.Sukumaran, the learned Public Prosecutor. 4. The prosecution case in a nut shell was that the appellant was working as an Assistant Engineer (Stores) in the Kerala Agricultural University at Mannuthi during 1986. He was in charge of the stores in the University. On a stock verification of the materials at the stores, it was noticed that there was a shortage of 78,617Kgs of tore steel. According to the prosecution, the shortage had occurred during the period from January 1, 1986 till December 12, 1986. The total value of steel found short, was reckoned as Rs.5,73,904/-. The prosecution Crl.A.No.816 OF 2000 :: 3 :: alleged that the appellant being a public servant had abused his official position by corrupt and illegal means and obtained or procured undue pecuniary advantage by indulging in the criminal acts of falsification of account, criminal breach of trust, etc. with dishonest intention. 5. The prosecution had examined PWs 1 to 7 and marked Exts.P1 to P43 on its side. DWs1 to 6 were examined and Ext.D1 to D11 were marked on the side of the defence. 6. The trial court, after an elaborate and careful consideration of the oral and documentary evidence adduced by the prosecution, came to the conclusion that the charge levelled against the appellant had been clearly established. It was thus that the appellant was found guilty and convicted and sentenced, as mentioned earlier. 7. Learned counsel for the appellant contends that the court below had egregiously erred in relying on the evidence adduced by the prosecution which by itself was totally untrustworthy. Learned counsel points out that the trial court had not properly appreciated the oral and documentary evidence Crl.A.No.816 OF 2000 :: 4 :: adduced by the accused. 8. The material witnesses on the side of the prosecution were PWs2, 3 and 5. PW2 was working as the Financial Assistant in the University at the relevant point of time. He had prepared Ext.P2 statements of stock for the period from January 1, 1986 till December 12, 1986. In the said statement, which bore the signature of PW2, it was recorded that there was a shortage of 12704 kg. of 25 m.m. tore steel, 28687 kg. of tore steel of 20m.m. thickness, 13401 kg. of 16 m.m. and 23825 Kg. of 10 m.m. tore steel. He further stated that he had produced the relevant records before the Vigilance Court. Exts.P3 and P4 “Prized Store Ledger” (Volume I and II) were also marked through PW2. Ext.P5, indent ledger was also marked through PW2. Similarly, this witness had produced Exts.P6 to P9 daily receipts and issue registers, Exts.P10 to P15 GPS (Goods Received Sheet) etc. A perusal of the deposition of PW2 will clearly show that he had referred to all the details of the stock position available on the date of verification. He further stated that the value of the stock of steel which was found short was fixed on the basis of Ext.P26 Crl.A.No.816 OF 2000 :: 5 :: proceedings of the Director of Physical Plant of the University. 9. PW3 was the immediate successor of the appellant/accused. He deposed before the court that he had assumed charge from the appellant on November 4, 1986. Ext.P27, charge report was prepared on December 12, 1986. The physical balance available as on that day was recorded in Ext.P27 in which he himself and the accused had signed. PW3 has also referred to the shortage of tore steel of various thicknesses in his deposition. He had also spoken about the procedure to be followed for the inward and outward movement of tore steel from the store and the manner in which the various registers had to be maintained at the store by the person in charge. He also stated that the appellant in his capacity as Assistant Engineer (Stores) was the custodian of the construction materials which were kept in the yard. 10. PW5 was the Senior Grade Auditor of the University during 1987. Ext.P34 report prepared by him and Sri.K.V.Bharathan, Inspector, Local Fund Audit was marked through this witness. He found that anomaly to the tune of Crl.A.No.816 OF 2000 :: 6 :: Rs.7,62,998 was detected during the audit. This witness had also spoken about the various anomalies noticed during the course of audit as regards the stores where the construction materials were kept. Of the other witnesses who were examined on the side of the prosecution, PW1 had proved Ext.P1 sanction order for prosecution. PW4 was the Superintendent of Police who had registered crime against the accused and PW6 was the Investigating Officer who conducted the investigation. PW7, the Dy.S.P. laid the charge sheet before the court. 11. As mentioned earlier, the evidence of the prime witnesses namely PWs2, 3 and 5 did clearly establish that the prosecution had succeeded in proving the charge against the accused. I have been taken through the depositions of the entire prosecution witnesses and also that of the defence witnesses. 12. It is contended by learned counsel for the appellant that the evidence of DWs1 and 2 will show that appellant was not solely responsible for the shortage in the stock. But the evidence of these witnesses had been elaborately discussed by the trial court. I do not deem it necessary to refer to the evidence of Crl.A.No.816 OF 2000 :: 7 :: those witnesses at this stage in detail. Suffice it to say that the defence had not succeeded in making any dent in the prosecution case. It is true that DW1 and DW3 to 6 who were former employees of the Agricultural University had made an attempt to suggest that the procedure followed for maintenance and release of stock in the Store in the University all along had not been above board or fool proof and many irregular practices were prevalent in the Store management. The obvious attempt of the above witnesses was to create confusion or suspicion in the mind of the court as regards the inward and outward movement of the materials of the store. 13. Having carefully perused the entire materials available on record and also the depositions of the witnesses examined in the case, both on the side of the prosecution and the defence, I am satisfied that the trial court was right in holding the appellant guilty of the offences alleged. 14. What remains is only the quantum of sentence imposed on the appellant, especially the fine of Rs.7,00,000/- imposed on him under Section 5(1)(c) of the Act. The specific case of the Crl.A.No.816 OF 2000 :: 8 :: prosecution was that the loss sustained by the University due to shortage of the stock was to the tune of Rs.5,73,904/-. According to PW2, who was the Financial Assistant of the University, the above sum was quantified on the basis of Ext.P26 proceedings of the Director of Physical Plant. It was admitted by PW2 that the amount of Rs.5,73,904 included establishment damage, storage charge, supply bill charge, etc. The prosecution had not adduced any evidence to show what was the exact amount under the head of establishment damage, storage charge, etc. Similarly, it was admitted by PW2 that Ext.P26 proceedings of the D.P.P. was relied on for fixing the value of tore steel which was found short. A perusal of Ext.P26 will show that it was only a photocopy of a proceedings allegedly issued by the D.P.P. It was also admitted by PW2 that the value was fixed in the year 1998 based on Ext.P26. However, the accused had never challenged marking of Ext.P26 in the case. Therefore, I am not persuaded to totally discard Ext.P26. But still, in the absence of any evidence to show what was the establishment damage, storage charge, etc., I am of the view that the fine imposed on Crl.A.No.816 OF 2000 :: 9 :: the appellant is on the higher side. Having regard to the peculiar facts and circumstances of the case, I am satisfied that ends of justice will be met, if the fine amount imposed on the appellant is reduced particularly since he is no more. For the reasons stated above, while confirming the order of conviction, the amount of fine is reduced from Rs.7,00,000/- to Rs.5,00,000/-. With the above modification in the amount of fine, the appeal is closed. (A.K.BASHEER, JUDGE) jes Crl.A.No.816 OF 2000 :: 10 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.816 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 10th July 2008