IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 288 of 1997()
1. VENUGOPAL
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.B.RAMAN PILLA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
Dated :07/03/2007
O R D E R
J.B.KOSHY, J.
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CRL.APPEAL.NO.288 OF 1997 ()
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Dated this the 7th day of March, 2007
J U D G M E N T
Appellant was the sole accused in Crl.A.No.19/1995. He
was charged for the offences punishable under Section 13(2)
read with Section 13(1)(c) of the Prevention of Corruption Act,
1988 and Sections 409, 468, 471 and 477-A of the Indian Penal
Code.
2. The allegations against the accused was that while he
was working as a Senior Assistant at the Pathanamthitta
District Depot of Kerala State Civil Supplies Corporation from
26.7.1988 to 25.11.1988 he was entrusted with the custody of
Palmolein oil and he was also in charge of Onam Market
conducted from 21.8.1988 to 25.8.1988. While he was working
so, he dishonestly forged a release order on 14.10.1988 in the
name of A.R.D.No.88 on the basis of chellan No.2 dated
13.10.1988 for the purpose of cheating and he falsified the
CRL.APPEAL.288/1997 2
accounts and by using forged release order as genuine, he
misappropriated 2 barrels of palmolein worth Rs.6,992/-. It was
further alleged that he has misappropriated provision goods
and other commodities worth Rs.1,62,620.15 during the period
from 4.9.1988 to 25.11.1988. He also misappropriated
provision goods and other commodities worth Rs.16,973/-
entrusted for sale at the Onam Market from 21.8.1988 to
25.8.1988. He misappropriated the accounts by forging
documents. Trial court after the detailed consideration of the
evidence held that allegations regarding misappropriation of
provision goods worth Rs.1,62,620.15 during the period from
4.9.1988 to 25.11.1988 and misappropriation of provision
goods worth Rs.16,973/- during Onam Market sale were not
proved. The only allegation proved was regarding the removal
of Palmolein worth Rs.6,992/- and he was found guilty under
Section 13(2) read with Section13(1)(c) and (d) of the
Prevention of Corruption Act, 1988 and Sections 409 and 477-A
of the I.P.C. The State did not file any appeal regarding the
findings that the accused is not guilty regarding the major
allegations of misappropriation of provision goods. Appeal is
filed against the conviction and sentence for the alleged
CRL.APPEAL.288/1997 3
misappropriation of 2 barrels of palmolein worth Rs.6,992/- by
committing the offence of criminal breach of trust and
falsification of accounts. The case of the prosecution is that
during the relevant time every month only one consignment,
consisting of 2 barrels of palmolein oil can be given to an
Authorised Retail Dealer (ARD). It is the allegation that
accused had forged the release order on 14.10.1988 by
forging chellan No.2 dated 13.10.1988 in the name of ARD
No.88. It is the case of the prosecution that ARD No.88 had
purchased 380 kg of palmolein oil (2 barrels) on 12.10.1988 for
Rs.6,992/-. Two barrels (380 kg) of palmolein oil alone are to
be sold to ARD 88 for October 1988 and that was sold as per
Ext.P7(a) and therefore 2 barrels as per Ext.P4(d) sale was
removed and by using forged chellan No.2 and thus
misappropriated the value of Rs.6,992/-.
3. The prosecution relied on the evidence of PW1,
Internal Audit Officer who marked main documents, PW5,
authorised ration dealer of ARD 200 and PW6, authorised ration
dealer of ARD 199 and deposed that they have not taken
delivery of 2 barrels of palmolein on 14.10.1988 by using
CRL.APPEAL.288/1997 4
chellan No.2 dated 13.10.1988. Unfortunately the prosecution
did not examine the retail dealer of Shop No.ARD 88.
Prosecution in this case ought have examined the ration dealer
of Shop No.ARD 88 to show that he has received 2 barrels of
palmolein oil on 12.10.1988 by using chellan No.2 and he has
not received on 14.10.1988 on the basis of forged chellan No.2.
Main evidence was lacking. I also note that stock register
produced and verification report produced did not show
shortage of 2 barrels of palmolein oil but that showed shortage
of other provision goods and none of the prosecution witnesses
stated that the 2 barrels of palmolein oil were missing from the
store for which no amount was received. If 2 barrels of
palmolein was removed without payment, stock register would
reflect shortage. Here there is no case that any barrels were
found short. Even though chellan No.2 dated 13.10.1988
which was alleged to be a forged chellan was produced,
original of chellan No.2 for which goods were alleged to have
released on 12.10.1988 to ARD 88 was not produced.
According to the prosecution, it was missing. Even the
counterfoils were also not produced. There is no possible
evidence that by using chellan No.2 palmolein was released to
CRL.APPEAL.288/1997 5
ARD 88 on 12.10.1988. Admittedly, according to the
prosecution no remittance was made for the palmolein
removed on 14.10.1988. If no remittance was made, there
should have been shortage in the stock register. But there is
no case that there is shortage of stock regarding palmolein oil.
According to the accused only 2 barrels were sold to ARD 88 for
October 1988. The alleged released chellan No.2 dated
12.10.1988 is not produced. Investigating Officer also stated
that he did not enquire how the above chellan was missing. To
the specific question PW14 answered as follows:
“PW1 88
12.10.1988
.
.”
Exts.P4(a), P4(b) and P4(c) entries also show that there were
corrections. Even the trial court judge found that there is no
supporting evidence on record to show that accused had
committed any forgery or forged documents were used by the
accused as genuine and no cheating was also committed by
the accused as he was acquitted for offences punishable under
CRL.APPEAL.288/1997 6
Sections 468 and 471 of the Indian Penal Code. In the absence
of the evidence that there is no shortage of palmolein in the
stock of the society and the finding that the accused has not
forged the documents and no cheating is involved complied
with the fact that even though alleged original chellan No.2 is
not produced, the retail dealer ARD No.88 also was not
examined to show that he has taken delivery on 12.2.1988.
Prosecution failed to prove the basis of charges. In the above
circumstances, I am of the view that the allegations against the
petitioner with regard to the 2 barrels of palmolein oil are not
proved beyond reasonable doubt. Hence conviction and
sentence is set aside and appeal is allowed accordingly.
J.B.KOSHY, JUDGE
prp
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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O.P.NO. OF 2006 ()
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J U D G M E N T
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1th January, 2007