IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 773 of 2003()
1. P.C.RAVI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/02/2011
O R D E R
M.Sasidharan Nambiar, J.
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Crl.A.No.773 of 2003
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JUDGMENT
Appellant was Shop Manager of Maveli Store,
Cheriyanadu during the period 24.4.1990 to 13.3.1991. He
was the first accused in C.C.No.100/2000 on the file of
Special Judge (Vigilance), Thiruvananthapuram. He was
convicted and sentenced for the offences under Section 13
(2) read with Section 13(1)(c) of Prevention of Corruption
Act and Section 409 of Indian Penal Code. This appeal is
filed challenging the conviction and sentence.
2. Prosecution case was that appellant was the Shop
Manager of Maveli Store, Cheriyanadu from 24.4.1990 to
13.3.1991. Second accused was the Helper during
24.12.1990 to 13.3.1991. Third accused was the Helper
during 27.4.1990 to 4.12.1990 and fourth accused was the
Helper during 10.12.1990 to 24.12.1990. It was alleged that
appellant entered into a criminal conspiracy with the
remaining accused, who were the Helpers, to
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misappropriate the commodities received at Maveli Store
and in furtherance of the object of criminal conspiracy, they
committed misappropriation by wilfully omitting to maintain
the Daily Stock-cum-Sales Return, Cash Book, Remittance
Register, Weekly Statement-cum-Sales Return, etc. and by
not accounting for the sales proceeds and misappropriated
an amount of Rs.1,14,589/- and thereby committed the
offences.
3. PW16, the Assistant Manager(Inspection), along
with PW17, the Junior Manager (Inspection), conducted
inspection of Maveli Store, Cheriyanadu on 6.3.1991 and
7.3.1991 and prepared Exhibit P13 report. It was found that
only an incomplete Stock Register was available in the
Maveli Store. Cash Book, Imprest Pass Book, Imprest
Vouchers, Liability Register, Daily Remittance Register,
Shortage Register and Up-to-date Stock Register were not
available. As inspection was conducted earlier up to the
period prior to 30.9.1990, inspection was restricted to the
period 1.10.1990 to 6.3.1991. It was found that basic
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records were not maintained even after lapse of ten months,
as the Maveli Store started functioning with effect from
April 1990. It was found that as per the cash, though
Rs.3099.60 should have been in the cash chest, only
Rs.2,018/- was found and thereby there was a shortage of
cash of Rs.1,081/-. It was also found that there was
misappropriation of Rs.1,50,516.05. The inspection was
conducted in the presence of the appellant and the other
accused. Exhibit P13(a) statement was given and signed by
the appellant admitting that there was a shortage of
Rs.1,49,010.30. Appellant could not explain the shortage
and in the statement, he submitted that, to explain the
shortage, the records are to be examined again in detail. In
Exhibit P13 report, it was specifically stated that for fixing
the actual loss and misappropriation, a detailed inspection
is necessary. On receipt of Exhibit P13 report, PW8, the
Regional Manager, directed PW17 to conduct a detailed
inspection. PW17 conducted a detailed inspection and
submitted Exhibit P2 report along with Exhibit P2(a), details
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of liability and trading particulars, based on the
consignment notes by which the commodities were received
at the Maveli Store as well as the Weekly Statements
furnished from the Maveli Store to the Unit Depot. PW17
found that value of the commodities received at the Maveli
Store as per the consignments from 24.4.1990 to 13.3.1991
was Rs.12,18,011.70. Commodities worth Rs.73,473.85
were found issued on credit basis under noon feeding
programme. After receipt of Exhibit P13 report, appellant
was suspended on 14.3.1991. On effecting the suspension,
appellant handed over charge to PW9. Exhibit P7 was the
charge report prepared by the appellant in his own
handwriting. In Exhibit P7, appellant furnished the details
of the commodities available at the Maveli Store as well as
the cash available and the shortage of cash and the records
which were handed over to PW9. PW17 found that value of
the commodities handed over by the appellant to PW9
under Exhibit P7 was Rs.18,173.20. It was found that
deducting the value of the commodities which were
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available when appellant handed over charge to PW9 and
that of the commodities issued on credit basis under noon
feeding programme, from the value of the commodities
received at the Maveli Store, the total amount which should
have been remitted to the Bank is Rs.11,26,364.70.
Verifying the remittance in the Bank, PW17 found that total
remittance was only Rs.10,10,857.50. Adding Rs.86.50
which was the cash handed over by the appellant to PW9, as
seen from Exhibit P7, it was found that value of the
unaccounted commodities was Rs.1,15,420.70. Finding that
there will be fluctuations in the value and the economic cost
would be more than the value shown in the consignment
notes, computing an average of the minimum of 20% and
maximum of 35% during the relevant period, worked out at
25.85%, PW17 fixed the said amount at Rs.29,836.25.
Adding it to Rs.1,15,420.70, the amount misappropriated
was fixed at Rs.1,45,256.95. PW17 fixed the liability with
18% interest on that amount, making a total of
Rs.1,68,179.70. Based on Exhibit P13 report, PW8
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submitted a report to the Superintendent of Police,
Alappuzha. Crime No.128/1992 of Chengannur Police
Station was registered under Exhibit P53 FIR. Finding that
an offence under Prevention of Corruption Act is attracted,
the case was transferred to the Vigilance and V.C.No.
10/96/VACB, Alappuzha was registered under Exhibit P58
FIR.
4. PWs 19, 20 and 25 conducted the investigation.
After completing the investigation and obtaining Exhibit
P55 order issued by PW22, the Managing Director of Kerala
State Civil Supplies Department, granting sanction sanction
to prosecute the accused, charge was laid before Special
Court (Vigilance), Thiruvananthapuram. It was taken
cognizance for the offences under Sections 409, 468, 477A
read with Section 120B of Indian Penal Code and Section 13
(1)(c) read with Section 13(2) of Prevention of Corruption
Act, 1988.
5. All the accused pleaded not guilty. Prosecution
examined twenty five witnesses and marked fifty eight
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exhibits. After closing the prosecution evidence, accused
were questioned under Section 313 of Code of Criminal
Procedure. When called up to adduce evidence, appellant
examined DW1 and got marked Exhibits D1 to D9.
6. Learned Special Judge, on the evidence, found that
appellant, being the Manager of the Maveli Store, is liable
to account for the commodities received at the Maveli Store
from the Unit Depot, after giving the intent and received
under consignments and even if some commodities were
received by the other accused, who are only Helpers, it is
for the appellant to account for the same. Based on Exhibits
P5 and P6 consignment notes relating to Maveli Store,
Cheriyanadu and Exhibits P26, P27, P28 and 44 Weekly
Statements-cum-Sales Return prepared and sent by the
appellant and Exhibit P2 report prepared by PW17, learned
Special Judge found that total value of the commodities
consigned to the Maveli Store, Cheriyandu during the
period from 24.4.1990 to 13.3.1991 was Rs.12,05,817/-.
Deducting Rs.7,775/-, covered by the inadmissible portion of
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Exhibits P5(s) and P5(ah) consignment notes, the total value
of the commodities for which appellant has to account was
Rs.11,98,042/-. Based on the evidence, it was found that
total amount remitted by the appellant in the Banks was
Rs.10,15,003/- and adding Rs.73,744/-, being the value of
the commodities issued on credit basis under noon feeding
programme and the value of the commodities handed over
to PW9, evidenced by Exhibit P7, namely, Rs.18,173/- and
cash of Rs.86.50, rounded to Rs.87/-, which was handed
over by the appellant to PW9, the amount which was found
short and not accounted by the appellant was found
Rs.91,305/-. Learned Special Judge found that the said
amount was fraudulently and dishonestly misappropriated
by the appellant and he thereby committed the offence
under Section 13(2) read with Section 13(1)(c) of
Prevention of Corruption Act. Learned Special Judge found
that evidence do not establish that appellant committed
offences under Sections 120B, 477A or 467 of Indian Penal
Code. He was acquitted of the said offences. Appellant was
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also found guilty and was convicted for the offence under
Section 409 of Indian penal code. Learned Special Judge
acquitted accused 2 to 4 finding that prosecution did not
establish any of the charges levelled against them. After
hearing the appellant on the question of sentence, he was
sentenced to rigorous imprisonment for three years and a
fine of Rs.20,000/- and in default, rigorous imprisonment for
one more year for the offence under Section 13(2) read with
Section 13(1)(c) of Prevention of Corruption Act. He was
also sentenced to rigorous imprisonment for three years for
the offence udner Section 409 of Indian Penal Code. But, no
fine was imposed for the said offence, in view of the fine
awarded for the other offence. He was also granted the
benefit under Section 428 of Code of Criminal Procedure.
7. Learned senior counsel appearing for the appellant
and learned Public Prosecutor were heard.
8. Argument of the learned senior counsel is that
prosecution did not establish the entrustment or
misappropriation or any fraudulent or dishonest intention. It
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was argued that though Exhibits P13 and P2 reports were
relied on by the learned Special Judge and prosecution got
marked Exhibits P5 and P6 book containing the
consignment notes and also got marked Exhibits P5(a) to P5
(ak) and P6(a) to P6(m) consignment notes, no evidence was
let in with regard to the details of the commodities received
under each of the consignment notes or the details of the
commodities shown Exhibits P26, P27, P28 and P44 Weekly
Statements furnished by the appellant and therefore, there
is no evidence on the exact quantity of the commodities
entrusted, sold or misappropriated by the appellant. It was
argued that it was the learned Special Judge who calculated
the value of the commodities based on the consignment
notes and weekly statements, without supporting evidence
and entered the finding and even the consignment notes,
which were not proved, were relied on and if those
unmarked consignment notes are excluded, there may not
be any shortage in the value of the commodities and
therefore, the conviction is not sustainable.
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9. Learned senior counsel also argued that there is
absolutely no evidence to prove that there was any
dishonest intention on the part of the appellant to
misappropriate any amount and in the absence of any
dishonest or fraudulent intention, as is clear from the
proved facts, it is clear that appellant had furnished correct
weekly statements to the unit depot and in such
circumstances, even if there was any shortage due to his
inexperience or lack of knowledge or negligence, it will not
amount to a dishonest misappropriation and therefore, on
the ground of shortage alone, appellant cannot be
convicted. Learned senior counsel also pointed out that
Exhibit P7 charge report itself shows that stock register
was taken away by the Assistant Manager (Inspection) and
evidence of PW16 corroborates that evidence and in such
circumstances, when prosecution did not seize or produce
the relevant records, appellant cannot be find fault for the
same and in any case, on the evidence, appellant could not
have been convicted. Finally, it was submitted that sentence
CRA 773/03 12
awarded is excessive and it warrants interference, in case,
the conviction is to be confirmed.
10. Learned Public Prosecutor pointed out that when
PW17 was examined and Exhibit P2 report along with
Exhibit P2(a) statement was marked, correctness of the
commodities received at the Maveli Store, prepared by
PW17 based on the consignment notes, was not challenged
and in such circumstances, appellant cannot dispute that
commodities were received at the Maveli Store as assessed
by PW17. It was also pointed out that learned Special Judge
analysed each of the consignment notes marked and
omitted to be marked with reference to the weekly
statements prepared by the appellant himself and
forwarded to the unit depot and finding that there were
corrections in Exhibits P5(s) and P5(ah), Rs.7,775/-, being
the value of the corrected commodities, were deducted. It
was found that Rs.91,305/- was unaccounted and appellant
has no explanation for the said shortage. It was argued that
appellant did not maintain the stock registers properly or
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the cash book and hence, it is clear that there was dishonest
intention on the part of the appellant to misappropriate the
amount and in such circumstances, the conviction is
perfectly legal. It was also pointed out that in any case, it is
conclusively established that there was a shortage of
Rs.1,869.65 in cash, which should have been there as per
the cash book, as admitted by the appellant himself in
Exhibit P7 and no further evidence is necessary with regard
to misappropriation of the said amount.
11. Exhibit P4 proceedings issued by the Managing
Director, Kerala State Civil Supplies Corporation, provides
the procedure to be followed on opening a Maveli Store. It
shows that Shop Manager is in over all charge of the Store
and is directly responsible for cash, goods traded in the
Store, furniture and other assets of the Store. It further
shows that Shop Manager shall ensure proper maintenance
of the Store and is responsible for maintaining maintenance
of stock accounts, assets register, consignment register,
issue of bill for all sales, remittance of sales proceeds of
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every day on the next day, to keep proper account for
imprest expenses, send daily sales returns and other
periodicals and open the Store on all days except Sundays
and notified holdings observing the timings and to display
the stock-cum-price board showing the available stock and
the price. It also shows that it is for the Shop Manager to
take delivery of the goods indented and to account the same
in the respective registers and if any shortage is detected, it
should be informed to the concerned unit depot and
Regional Manager. It also provides that no sale shall be
made on credit and cash collection should be kept in the
cash chest, provided and the key of the cash chest and show
room shall be kept by the Shop Manager on duty. It further
shows that prompt accounting of the sales proceeds of the
Corporation opened for the purpose should be made on the
next day morning positively and till this arrangement is
made, the sales proceeds shall be remitted by way of
Demand Draft drawn in favour of Kerala State Civil Supplies
Corporation which shall be credited in the collection
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account of the Unit Manager concerned. It is, therefore,
conclusively established that being the Shop Manager, it is
for the appellant to maintain all the required registers and
also to take delivery of the commodities indented from the
unit depot and account them in the respective registers and
remit the sales proceeds in the account maintained for that
purpose by Kerala State Civil Supplies Corporation on the
very next day and the cash shall be kept in the cash chest
and the key of the cash chest must be in the custody of the
appellant.
12. The fact that Maveli Store, Cheriyandu started
functioning with effect from 24.4.1990 and appellant was
appointed the Shop Manager and appellant has been
functioning as the Shop Manager till he was suspended by
PW8, after receipt of Exhibit P13 report and appellant had
given charge to PW9 on 14.3.1991 are not disputed. The
fact that PWs 16 and 17 conducted inspection in the Maveli
Store on 6.3.1991 and 7.3.1991 and prepared Exhibit P13
report in the presence of the appellant and Helpers and at
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the time of inspection, shortage of commodities were found
and Exhibit P13(a) statement was furnished by the
appellant stating that a shortage of Rs.1,49,010.30 was
found and there was a deficit of cash, as out of Rs.3,833/-
which should have been there as the sales proceeds, only
Rs.1,081.67 was found. Appellant asserted that he is not in
a position to explain the deficit at that point of time and
explanation could be offered on examination of the accounts
once again. As Exhibit P13 report was prepared on
assumptions and it was recommended that a detailed
inspection is necessary, after receipt of Exhibit P13 report,
appellant was placed under suspension directing him to
hand over charge to PW9. It was pursuant to the order of
suspension, appellant handed over the charge to PW9 after
preparing Exhibit P7 charge report in his own hand writing.
Exhibit P7 shows the details of the commodities, the cash
and records handed over to PW9 on 14.3.1991 and taken
charge by PW9 on the same day. It further shows that cash
handed over was Rs.86.50 and appellant had shown that the
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cash, which should have been there, as per the cash balance
shown in the cash book, was Rs.1,956.15. Appellant himself
has shown the variation as Rs.1,869.65, though he has
shown that it is the imprest account. At Page No.5 of
Exhibit P7, appellant has recorded that pass book is
misplaced and a duplicate pass book was applied for.
Exhibit P7 itself is sufficient to prove that as on 14.3.1991,
when appellant was placed under suspension, though there
should have been a cash of Rs.1,956.15, appellant handed
over only Rs.86.50 and there was a shortage of Rs.1,869.65.
13. Though learned senior counsel argued that
appellant had accounted the same, by producing Exhibits
D1, D2, D4 to D6 bills, the shortage cannot be explained.
Exhibits D1, D2 and D4 to D6 bills relate to the year 1990.
Moreover, if these bills were there for remitting the
amounts during the relevant period, appellant should have
handed over those receipts along with other records and
cash at the time of handing over the charge to PW9. Even if
the entire amount covered by those bills produced by the
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appellant is accepted, it would come to only Rs.894.25 and
the balance was not accounted.
14. There is force in the argument of the learned
counsel appearing for the appellant that prosecution did not
let in evidence in detail with reference to each consignment
notes and the corresponding weekly statements sent by the
appellant. But, I cannot agree with the argument of the
learned senior counsel that on that ground, finding of the
learned Special Judge, on a proper analysis of the
consignment notes and weekly statements forwarded by the
appellant, the shortages found out correctly are to be
ignored or cannot be upheld. It is to be borne in mind that it
was in the presence of the appellant, PWs 16 and 17
inspected the Maveli Store, verified the records and
commodities and submitted Exhibit P13 report. It is clear
that they satisfied the appellant that there was shortage of
commodities to the value of Rs.1,49,010.30. It is thereafter
PW17 conducted a detailed inspection and furnished Exhibit
P2 report along with Exhibit P2(a) statement showing the
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details of each of the commodity received at the Maveli
Store, including its weight and value. Though PW17 or the
other officers of Civil Supplies Department, who were
examined, did not give evidence with reference to the
contents of each of the consignment notes or the details of
the commodities received thereunder, evidence of PW17
shows that said report was prepared with reference to the
consignment notes available at the Maveli Store as well as
at the unit depot and on comparing each with the other and
satisfying that there are same corrections in the
consignment notes available in the Maveli Store as well as
in the unit depot. PW17 also deposed how he fixed the
shortage based on this data. PW17 was not cross-examined
with reference to the correctness of the commodities or the
weight of each of the commodity recorded in Exhibit P2(a)
statement. There is no case for the appellant, when PW17
was cross-examined, that quantum of the commodities
recorded in Exhibit P2(a) statement are not correct or are
not in accordance with the quantity of the commodities
CRA 773/03 20
noted in Exhibits P5 and P6 consignment notes. Similarly, it
is not disputed that Exhibits P26, P27, P28 and P44 weekly
statements were prepared by the appellant himself and
forwarded to the unit depot. Evidence of PW17 also shows
that Exhibit P2 report was prepared with reference to the
said statements also. Learned Special Judge elaborately
considered each of the consignment notes with reference to
the weekly statements and found that receipt of the
consignments is established by the entries in the weekly
statements prepared by the appellant and forwarded to the
unit depot. Though learned senior counsel argued that
learned Special Judge was not justified in relying on the
unmarked consignment notes, as no evidence was let in
with reference to the said contents, learned Special Judge
found that there are corresponding entires with regard to
the said unmarked consignment notes in the weekly
statements furnished by the appellant. Even if it is taken
that as the respective consignment notes were not proved
and therefore, they cannot be relied upon, the
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corresponding entires made by the appellant himself in the
weekly statements establish that those commodities were
received at the Maveli Store. If that be so, learned Special
Judge was justified in finding that there was shortage with
reference to the entires in the weekly statements forwarded
by the appellant himself.
15. Learned senior counsel has no case that any of the
findings of the learned Special Judge with reference to the
consignment notes are not in accordance with the details
shown in the weekly statements. In such circumstances, it is
not necessary to discuss in detail each of the consignment
notes relied upon by the learned Special Judge. Evidence
conclusively establish that the commodities, noted by PW17
in Exhibit P2(a) statement, were received at the Maveli
Store, Cheriyanadu.
16. As stated earlier, being the Shop Manager, it is the
responsibility of the appellant to enter the commodities so
received in the stock register as well as show the details of
the commodities sold and the balance on each day.
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Appellant has no case that he maintained the registers as
provided under Exhibit P4 proceedings of the Managing
Director of Kerala State Civil Supplies Corporation.
Evidence conclusively establish that there was shortage of
commodities when appellant handed over charge to PW9 on
14.3.1991. That shortage has been worked out by PW17 in
Exhibit P2 report. True, PW17 did not value the
commodities with reference to the bullet prevailing on the
respective months. PW17 assessed the value taking the
economic cost on an average of 25.85%. Even if that excess
is not added to the total value of the commodities, there is
shortage. Learned Special Judge in fact deducted
Rs.7,775/-, being the amount covered by the items,
corrected in Exhibits P5(s) and P5(ah) consignment notes
and also deducted the amount covered by Exhibits D1, D2
and D4 to D6 series of bills produced by the appellant
before the court and fixed the shortage at Rs.91,305/-. In
fact, on the evidence, amount covered by Exhibits D1, D2
and D4 to D6 bills could not have been given credit to as
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they relate to much earlier period. Whatever it be, on the
evidence, I find no reason to interfere with the findings.
17. Then the only question is whether, for this
shortage, it could be said that appellant misappropriated
the amount with a dishonest or fraudulent intention.
Argument of the learned senior counsel is that appellant
joined there only on 24.4.1990 and he was inexperienced
and if due to his lack of knowledge of the procedures or
accounts or at best due to his negligence there was
shortage, it will not amount to misappropriation. Relying on
the decision of this Court in State of Kerala v.
Sudhakaran (1988 (1) KLT SN Case No.80) and the
decision of the Honourable Supreme Court in Radha
Pisharassiar Amma v. State of Kerala ((2007) 13 SCC
410), it was argued that the fact that there was shortage
does not automatically establish that there was a dishonest
or fraudulent intention to misappropriate the amount and
mens rea is to be established and there is no evidence to
prove the same. Learned single Judge in Sudhakaran’s
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case (supra), found that all the ingredients of the offence
which includes the dishonest mental condition or intention,
which is termed mens rea will also have to be established
and burden is to prove something much more than failure of
omission. Learned single observed as follows:
“When entrustment is proved and deficiency
coupled with failure to account, answer or return is
established, dishonest misappropriation or
conversion may be a matter for inference without
further proof. But that need not necessarily be so
in all cases. The inference is possible only when
the proved facts and circumstances lead to that
conclusion. In a case where it is possible that the
entrusted property might have been lost or mislaid
or stolen or taken away by somebody else, the
mere failure or omission without anything more
will not be sufficient to prove the offence.”
That does not mean that when entrustment is proved and
the accused has no explanation with regard to his failure to
account for the same, an inference cannot be drawn in the
absence of proof of mens rea that there was dishonest
intention to misappropriate. Position would be different if
he has an explanation that the article or money entrusted or
under his domine was lost or was stolen or was taken away
CRA 773/03 25
by somebody else, as found by the learned single Judge. The
Honourable supreme court in Radha Pisharassiar
Amma’s case (supra), observed that evidence must show
that accused dishonestly misappropriated or converted to
his own use that property or dishonestly used or
dispossessed that property in violation of any direction of
law prescribing the mode in which said trust is to be
discharged. Facts of the case are entirely different.
18. As stated earlier, when PWs 16 and 17 inspected
the Maveli Store, there was a cash of Rs.1,081/-. That was
on 6.3.1991. Appellant handed over the charge to PW9 after
he was suspended on 14.3.1991. At that time, the cash,
which was handed over, was only Rs.86.50. Therefore, when
Rs.1,081/- was available on 6.3.1991, even after the deficit
was pointed out to the appellant, he failed to explain the
same in Exhibit P13(a) statement. When appellant handed
over charge on 14.3.1991, Rs.1,081/- was further reduced to
Rs.86.50. This deficit cannot be explained by any other
means like was stolen or taken away or utilised for any
CRA 773/03 26
other purpose. Even if Exhibits D1, D2 and D4 to D6 series
of bills are accepted, they all relate to a period prior to
6.3.1991 and cannot explain the said shortage. When
appellant was aware that there was shortage of cash, he
cannot be expected to spend any amount after 6.3.1991
without proper receipt or voucher. If there was any such
voucher or bill, it should have been available with the
appellant and he should have produced it before PW9 on
14.3.1991. Even at the time of Evidence, appellant has no
case that balance of Rs.1,081/-, less Rs.86.50 handed over
to PW9, was spent on any account. It is, therefore,
absolutely clear that appellant misappropriated that
amount. With this in mind, non accounting of commodities
of Rs.90,000/-, as found by the learned Special Judge, is to
be appreciated. The very fact that appellant did not
maintain the registers, which should be maintained as
provided under Exhibit P4 proceedings, establishes that he
had a dishonest intention. If a proper stock register is
maintained showing the details of the stock available after
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deducting the sales proceeds of the commodities sold each
day and the balance available, as and when an inspection is
conducted in the Maveli Store, it is very easy to find out the
deficit. Evidently, to circumvent that detection, the stock
register was not properly maintained. That itself establishes
the fraudulent and dishonest intention of the appellant. On
the evidence, I have no hesitation to confirm the finding of
the learned Special Judge that appellant committed offences
under Section 409 of Indian Penal Code as well as Section
13(2) read with Section 13(1)(c) of Prevention of Corruption
Act. The fact that prosecution failed to establish that
appellant committed forgery or falsified the accounts or
entered into a criminal conspiracy with the other accused
will not affect his conviction for the offences under Section
409 of Indian Penal Code and Section 13(2) read with
Section 13(10(c) of Prevention of Corruption Act, as
ingredients of the offences are conclusively proved by the
prosecution. Hence, the conviction for the said offences can
only be confirmed.
CRA 773/03 28
19. Then the only question is regarding the sentence.
Learned senior counsel submitted that appellant has been
facing the threat of prosecution for more than a decade and
he has a wife and son to maintain and in such
circumstances, leniency be shown. Learned Special Judge
awarded a substantive sentence of rigorous imprisonment
for three years and a fine of Rs.20,000/- an in default,
rigorous imprisonment for one year for the offence under
Section 13(2) read with Section 13(1)(c) of Prevention of
Corruption Act. Though substantive sentence of rigorous
imprisonment for three years was also awarded for the
offence under Section 409 of Indian Penal code, that
sentence was directed to run concurrently. Section 13(2) of
Prevention of Corruption Act provides for a minimum
sentence of one year. Considering the entire facts and
circumstances of the case, interest of justice will be met if
the sentence is modified to rigorous imprisonment for two
years and a fine of Rs.80,000/- and in default, simple
imprisonment for six months for the offence under Section
CRA 773/03 29
13(2) read with Section 13(1)(c) of Prevention of Corruption
Act. In view of the said modification in the sentence,
substantive sentence for the offence under Section 409 of
Indian Penal Code is also to be reduced to rigorous
imprisonment for two years.
Appeal is allowed in part. Conviction of the appellant
is confirmed. Sentence is modified as follows:
Appellant is sentenced to rigorous imprisonment for
two years and a fine of Rs.80,000/- and in default, simple
imprisonment for six months for the offence under Section
13(2) read with Section 13(1)(c) of Prevention of Corruption
Act. He is also sentenced to rigorous imprisonment for two
years for the offence under Section 409 of Indian Penal
Code. Substantive sentences shall run concurrently. Special
Judge (Vigilance), Thiruvananthapuram is directed to
execute the sentence.
2nd February, 2011 (M.Sasidharan Nambiar, Judge)
tkv
CRA 773/03 30
M.Sasidharan Nambiar, J.
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Crl.A.No.773 of 2003
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JUDGMENT
2nd February, 2011