IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 CRL.A.No. 304 of 1999(Y) ------------------------ CC.16/1996 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANTS/ACCUSED 1,4 & 5: ---------------------------------- 1. K. DAMODARAN PILLAI, SECRETARY, KOTTUKAL SERVICE CO-OPERATIVE SOCIETY LTD. NO.T.196, THIRUVANANTHAPURAM. 2. B.P. ANANTHAPADMANABHADAS, FORMERLY MEMBER DIRECTOR BOARD, KOTTUKAL SERVICE CO-OPERATIVE SOCIETY LTD., THIRUVANANTHAPURAM. 3. A.PRABHAKARAN NAIR, FORMERLY PRESIDENT, KOTTUKAL SERVICE CO-OPERATIVE SOCIETY LTD., THIRUVANANTHAPURAM. BY ADV. SRI.P.RAMAKRISHNAN NAIR RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. CRIME NO.2/HO/89-DY. S.P. VIGILANCE HEAD QUARTERS, UNIT II, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR, SRI.P.N. SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008,ALONG WITH CRA NO. 318 OF 1999 AND CRA NO. 332 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos. 304, 308 & 332/1999 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of April, 2008. Judgment These three appeals are being disposed of by this common judgment since two of the appellants are common and the transactions from which the three Calender Cases emanated were inter-connected. 2. Sri.Damodaran Pillai who is the common appellant was the Secretary of the Kottukal Service Co-operative Society during the period 1985-87. The other accused are the President and members of the Board of Directors of the Society. The gravamen of the charge against the accused in the three cases--C.C.Nos.16/96, 18/96 and 19/96-- was that they had sanctioned Rs.5,000/- each as loan to several people in furtherance of criminal conspiracy after creating fabricated documents. In CC.Nos.16/96 and 18/96 the amount sanctioned as loan was Rs.30,000/- each while in CC.19/96 it was Rs.35,000/-. Thus the Society was alleged to have sustained a loss to the tune of Rs.95,000/-. The trial court found some of the accused not guilty and they were acquitted. However the appellants in these appeals were found guilty of the offences punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption act 1947 and also under Section 120B and 409 and 420 IPC. I will deal with the respective sentences imposed on the appellants a little later. 3. Learned counsel for the appellants has addressed his Crl.A.318 & 332/99, 142/2000. 2 arguments mainly on the question of sentence imposed on the appellants. Of course, he has also challenged the legality of the order passed against the President of the Society who was accused No.5 in CC.16/1996. 4. According to the learned counsel it was the admitted position that there was no sanction to prosecute the said accused. Learned senior Government Pleader concedes that there was no sanction to prosecute Sri.Prabhakaran Nair for the offences under the IPC . But according to the learned Govt. Pleader the court below was justified in holding Sri.Prabhakaran Nair guilty of the offence under Section 5(2) of the P.C.Act. 5. Having heard learned counsel for the appellants and the learned Government Pleader and having perused the materials available on record, I am satisfied that the sentence of imprisonment imposed on the appellants, (only some of whom survive now), is not warranted. It is brought to my notice that appellant No.2 (Ananthapadmanabhadas) in Crl.A.304/99 and 318/99 is no more. Similarly M.Arulappan (appellant No.3 in Crl.A.332/99) has also passed away. 6. As mentioned earlier, Sri.Damodaran Pillai, the then Secretary is a common factor in all the three appeals. He has been sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/- under Section 5(2) read with section 5(1)(d). In default of payment of fine he has been directed to undergo rigorous imprisonment for a further period of 6 months. Similarly Crl.A.318 & 332/99, 142/2000. 3 Sri.Damodaran Pillai was also convicted and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/- under Section 120B IPC. But no separate sentence was imposed on him under Section 409 and 420 IPC though he was found guilty under those counts as well. 7. It is submitted by the learned counsel that Sri.Damodaran Pillai is aged 80 years and he is afflicted with various ailments. He is not even in a position to get out of his bed. In the peculiar facts and circumstances of the case I am satisfied that the sentence of imprisonment imposed on him under Section 5(2) of the Act and also under Section 120B IPC is liable to be set aside. I do so. However he shall pay the fine of Rs.5,000/- imposed on him under section 5(2) of the Act. The default sentence is also sustained. 8. Sentence of imprisonment imposed on all other appellants who are also very old and sickly is also set aside. They shall pay the fine amount imposed on them. The default sentence imposed on them is sustained. Since no sanction for prosecution was obtained to prosecute Sri.Prabhakaran Nair for the offence under the IPC, his conviction under Section 120B, 409 and 420 IPC is set aside. The appeals are disposed of in the above terms. A.K. Basheer Judge. an. Crl.A.318 & 332/99, 142/2000. 4 A.K. Basheer, J. Crl.A.No. 304, 308 & 332/1999 Judgment 9/4/2008.