JUDGMENT
K.G. Balakrishnan, J.
1. This is an appeal against the conviction and sentence entered against the appellant in C.C. 1 of 1984 on the file of the Special Judge (SPE/CBI)-II, Ernakulam. The appellant was found guilty of offences punishable under Sections 409 and 477-A, I.P.C. and Section 5(2) and 5(1 )(c) of the Prevention of Corruption Act. For the offence under Sections 477A and 409, I.P.C. the appellant was sentenced to undergo rigorous imprisonment for a period of one year each and for the offence punishable under Section 5(2) of the Prevention of Corruption Act he is sentenced to undergo rigorous imprisonment for a period of I year and to pay a fine of Rs. 15,000/-, and in default of payment of fine he is sentenced to undergo rigorous imprisonment for a further period of one year.
2. The appellant was a Store-keeper in the Cochin Shipyard during the relevant period. He was initially appointed as a Clerk. On promotion he was appointed as a Storekeeper and he was put in charge of 9 diesel pump. The appellant was in charge of the diesel pump from 6-2-1980 to 4-2-1982. Formerly this diesel pump was being operated by a private concern named Tharapur Company. The diesel pump and other accessories were received by the Cochin Shipyard under Ext. P43 receipt dated 6-2-1980. According to the practice in vogue Shipyard used to receive diesel from the Indian Oil Company. Pursuant to the indent for supply of diesel the Indian Oil Company will supply the required quantities. Diesel is supplied in tanker lorries and it is discharged into the underground tank. Stock in the tank is verified before supply and after diesel is filled, again the stock in the tank is cheeked. The Storekeeper acknowledges the receipt of the diesel and ‘goods receipt voucher is prepared by the Purchase and Stores Officer. During the tenure of office of the accused as Storekeeper 38,000 litres of diesel was supplied to the diesel pump by Indian Oil Company, vide Exts. P3 to P6 invoices. The diesel stored in the lank of the diesel pump is used for the various vehicles belonging to the Shipyard. The various departments-in the Shipyard will prepare 5 copies of the stores indent voucher. The last copy is kept in the office for being used as office copy and the lour copies are sent to the Storekeeper along with the vehicle. After supplying the required quantity, the Storekeeper fills up the relevant columns to indicate the quantity supplied by him. Thereafter one copy is retained by the Storekeeper and one copy is sent to the accounts Section 2 and one copy is sent to electronic date processing system and the 3rd copy is sent to the Section 2 which places the indent. The quantity supplied by the Storekeeper is entered in Ext. P16 ledger. Between the period from 19-6-1980 to 3-2-1982 Exts. P1, P7. P8 and P10 to P15 stores indenting vouchers (S.I. Vs.) were sent to the accused from various Section 2s. These vouchers were drawn up for supply of quantities ranging from 10 litres to 40 litres. The prosecution case is that the accused added a zero to the figure mentioned in the S.I. V. and made it appear that the indent was for larger quantity. He also made corresponding change in the quantity mentioned in words. As per Exts. P1, P7, P8 and P10 to P15 the total quantity of diesel indented for supply was 190 litres. But by correcting the S.I.Vs. he made it appear that the indent for supply was 1900 litres and in the ledger maintained during that period he made corresponding entries. In addition to this he also falsified the entries in Ext. P16 ledger. On 5-8-1981 and 21-10-1981 the balance in the underground tank was shown lesser by 1000 litres. Thus, the prosecution case is that the accused committed criminal misappropriation of 3710 litres of diesel.
3. On 4-2-1982 PW11 took over the charge of the pump from the accused. The accused handed over charge to PW11 and he gave Ext. P27 certificate, wherein he acknowledged that the underground tank contained 1080 litres of diesel. Thus there was a shortage of 3710 litres of diesel. On getting information about these irregularities a case was registered against the accused. Investigation was conducted. Sanction was accorded for prosecuting the accused. The accused mainly contended that there was no criminal misappropriation and the mistaken entries found in the S.I. Vs. and the ledger are only clerical error. It was also contended that there was no factual physical verification and had there been a verification, there would not have any deficiency in the quantity of diesel. The Court below disbelieved the defence contention and found the appellant guilty and convicted him as aforesaid.
4. On the side of the prosecution several witnesses were examined to prove that there was entrustment of diesel with the appellant. The appellant was put in charge of the diesel pump on 6-2-1980. Ext. P28 is an office order issued by the Deputy Manager to the appellant. The appellant would contend that he had not received the copy of Ext. P28 and the main contention of the appellant is that he was never put in exclusive charge of the diesel pump. Online other hand, the case of the prosecution is that ever since the management of the diesel pump was handed over to the Cochin Shipyard from Tarapur Company, the appellant had been in charge of the same. Ext. D23 is a receipt issued by the Purchase and Stores Officer indicating that the diesel pump installation including the various articles such as brass, dip rod, fire buckets, measuring can, funnel etc. were received by the Purchase and Stores Officer of the Cochin Shipyard from M/s. Tarapur Company. The contention of the appellant is that it was the Purchase and Stores Officer who got the custody of these articles and the appellant was never aware of the handing over of the diesel pump installation to the Cochin Shipyard. This contention is evidently false, in view of Ext. P43. Ext. P43 appears to have been a draft prepared by the appellant. It is true that it does not contain the signature of the appellant, but on verification it appears to have been prepared by the appellant. It is dt. 6-2-1980. The further case of the prosecution is that the appellant was in charge of the diesel pump and was receiving the supply of diesel from the Indian Oil Company I and was issuing the same to various departments as per the request made in the stores indent vouchers. The learned Counsel for the appellant vehemently contended that the appellant was never put in exclusive charge of the diesel pump and the key of the pump set was kept in open place that was accessible to all and there were about 36 Storekeepers in the Cochin Shipyard and all of them were handling the transactions in the diesel pump. It was also contended that actually the pump was operated by muzdoors and he had only made certain entries in the ledger and the indent vouchers as per the time to time information furnished by the muzdoors. the j various documents produced by the prosecution would clearly belie this case. Ext. P16 ledger would show that almost all the entries right from 6-2-1980 to 4-2-1982 have been made by a single individual. No dissimilar handwritings are seen in Ext. P16 ledger. If so many storekeepers were put in charge of the diesel pump set, there would have been entries by different persons in Ext. P16. The contention of the appellant that muzdoors were actually doing the work cannot be accepted for a moment. The appellant being the Storekeeper was responsible for all the entries made in the registers as well as in other S.I.Vs. prepared ; for the receipt and issuance of diesel. The documents produced by the prosecution would further prove the complicity of the appellant and would strengthen the contention that it was the appellant and none else was in charge of the pump for the period from 6-2-1980 to 4-2-1982.
5. The main allegation against the appellant is that he made falsification of the accounts with regard to. nine stores indent vouchers. They are Exts. P1, P7, P8 and P 10 to P 15. All these stores indent vouchers were proved by various prosecution witnesses who prepared the same. These witnesses have also spoken to the alteration made in the receipt. Except in Ext. P 12, in all other. Section 1. Vs. the figure has been corrected by adding one zero on the right hand side. Ext. P 12 indent was for the supply of 10 liters of diesel. There is no correction in the entries in Ext. P 12, but in Ext. P 16(1) the relevant entry in the ledger would show that the appellant had supplied 100 litres of diesel as against the indented quantity of 10 liters. Exts. P 1, P 7, P 8 and P 10 to P 15 would show that altogether 190 liters of diesel was indented. However, in Ext. P 16 ledger the total quantity supplied is shown as 1900 litres. The appellant admits while questioned under Section 313, Cr. P.C. that some corrections are found in the S.I.Vs, The appellant has no case that the S.I.Vs. were corrected after he despatched the same to the concerned Section 2s. The explanation of the appellant is that it was the mazdoors who issued the required quantity of diesel and they would inform the matter to the storekeeper and the storekeeper will write down the quantity issued from the diesel pump set. This explanation is patently false. Ext. P 10 is an indent prepared by PW 17 who is an Assistant Executive Engineer working the Shipyard. He deposed that he prepared Ext. P 10 for the supply of 40 litres of diesel for the use in the rod roller. In Ext. P 10 in the column where the quantity of diesel is to be written figure 400 has been written. PW 7 deposed that the capacity of the oil tank of the rod roller was only 50 to 60 litres. Therefore it is highly improbable that the appellant would have simply filled up the column as 400 when the vehicle itself had no capacity to contain 400 litres of diesel. Ext. P 10 was issued on 19-6-1981. That will show that the appellant had got sufficient experience in the diesel pump set unit and he would not have done such mistake inadvertently. It is clear that the appellant has deliberately altered the figures in all the S.I.Vs. produced by the prosecution. This would get further assurance from the entries in Ext. P 16. At least at the time when he entered the figures in Ext. P 16 register he should have noted the difference and rectified the mistake. Therefore, it is clear that the entries in Exts. P. 1, P 7, P 8 and P 10 to P 15 were not made inadvertently and they are not clerical mistakes as contended by the appellant. They have been inserted deliberately in the S.I.Vs. and such falsification has been repeated in Ext. P 16 ledger. As regards the falsification of accounts in Ext P 16 regarding two entries the appellant has no explanation. In Ext. P 16 ledger on 5-8-1981 and 21-10-1981 balance has been shown lesser by 100 litres each time. The appellant would contend that this is a clerical error and such error often occurs while preparing accounts. It is difficult to believe such a contention. If it was only a clerical error and the mistake regarding 2000 litres had occurred in that manner, that much quantity of diesel should have been in the underground, tank of the diesel pump, whereas the evidence in this case would show that there was deficiency of diesel in the underground tank. The entries in Ext. 16 themselves prove that complicity of the appellant.
7. The main contention urged by the appellant is that there was no entrustment of diesel to the appellant and there was no evidence to show the actual quantity of diesel found in the underground tank. Exts. P 1, P 7, P8 and P 10 to P 15 S.I.Vs. were issued during the period of about 8 months, i.e. from 19-6-1981 to 5-2-1982. During this period about 38(XX) litres of diesel was supplied by the Indian Oil Company. Exts. P 3 to P 6 are the four invoices regarding the supply of this 38000 litres. As per Ext. P6 on 29-5-1981, 9000 litres of diesel was supplied to the Shipyard. So also, as per Ext. P 3. 9000 litres and as per Exts. P 4 and P 5 invoices, 10000 litres each was supplied to the Shipyard. The supply of the diesel has been entered in Ext. P 16 ledger. The entries are seen to have been made by the appellant. In Ext. P 4 to P 6 invoices a receipt is seen to have been issued by the appellant. The appellant has signed in all these 4 invoices and it has been written in these invoices that the goods covered by the invoices were received from Indian Oil Corporation (Marketing Division) in good condition. The signatures of the appellant found in Exts. P 3 to P 6 were sent for comparison by the Handwriting Expert. PW 4, the Handwriting Expert, deposed that the signatures found in Exts. P 3 to P 6 are the signatures of the appellant. Therefore, it is proved that the 38000 litres of diesel was received in the diesel pump and the appellant had received the same in his capacity as the store-keeper in the Shipyard. So, it is satisfactorily proved by the prosecution that there was entrustment and the contention of the appellant that so many other people had access to the pump set and that they were all handling the same cannot be accepted. It is also to be noted that all the S.I. Vs. sent to the diesel pump were also signed by the appellant Even though the appellant has examined several witnesses on his side and got marked several documents, he could not produce a scrap of paper to show that diesel pump was being operated by somebody else other than the appellant during the relevant period.
8. The next contention urged by the appellant is that the prosecution failed to prove that there was shortage of diesel in the underground tank and it is not proved that the, appellant has physically removed diesel from the underground tank. It is also pointed out that the premises of the Shipyard is under tight security and nobody can remove any article from the premises of the Shipyard and the learned Counsel for the appellant urged that if at all there was any mistake in the entries in the S. I. Vs. and ledgers there would not be any shortage of diesel. This contention also cannot be accepted. The appellant at the time of handing over of charge had given a hand-note and as per the hand-note the underground diesel tank contained 1080 literes of diesel. Ext. P27 is the hand-note prepared and signed by the appellant. It is also signed by PW 11, who was the successor in office of the appellant. As regards Ext. P 27 the explanation of the appellant was that this was got signed by his superior officer under coercion and threat and it is also alleged that there was no physical verification. It has come in evidence that the quantity of diesel in the underground tank was measured by dip method. The Indian Oil Corporation had supplied a dip stick with a chart. On the basis of the theoretical calibration table the quantity of the diesel was measured. The counsel for the appellant would contend that the chart used at the time when the appellant was in charge was found defective and subsequently a new chart was introduced and Ext. D 8(a) is the new chart. But the evidence in this case would show that there was not much difference between the old chart and the new one and the difference if at all was only less than 0.5 litres. This is a negligible quantity when compared to the total capacity of the tank which is 15000 litres. So, it was necessary to have a physical verification by measuring the entire quantity of the diesel from the underground tank. By dip strick method the quantity was measured and the appellant issued Ext. P 27 handnote. The learned Counsel for the appellant further contended that on subsequent verification huge quantity was found in excess. The appellant when questioned under Section 313, Cr. P.C. has staled that electronic data processing unit on 31-3-1982 showed a total quantity of diesel as 20,547.53d litres and this difference would show that there was huge quantity in excess. This contention cannot be accepted. The electronic data processing would show the figures only on the basis of the figures supplied to the computer. Evidently the figures supplied to the computer were mistaken. Therefore it showed the quantity of diesel very much in excess and it was more than the capacity of the underground diesel tank. Therefore, Ext. P 27 and other evidence would show that the stock was verified and at the time when the appellant relinquished his charge on 4-2-1982 there was only 1080 litres of diesel. If the contention of the appellant that the entries in the S.I.Vs. and the ledger were only clerical error and 3710 litres of diesel was not removed from the tank the underground tank should have shown more than 1080 litres. This fact alone is sufficient to prove that the appellant has not only made falsification of accounts but also misappropriated the articles which were entrusted to him.
9. The learned Counsel for the appellant challenges the conviction and sentence on the ground that there was no proper sanction as contemplated under Section 6(1)(c) of the Prevention of Corruption Act. Ext. P 37 is the sanction order. It gives the details of the allegations against the appellant. Reference has been made to the various records wherein the appellant made false entries. Therefore, it cannot be said that Ext. P 37 was issued without proper application of mind. The sanction order is seen signed by J. Kanaka Sabhavathi, the then Controller of Contracts and Stores in the Cochin Shipyard. At the time of trial the said Sabhavathi was not working in the Shipyard and Ext. P 37 was proved through PW 21 who was familiar with the signature of Sabhavathi. Exts. P 38, 39 and 40 are the three documents which would show that disciplinary proceedings could be taken against the workmen by the Controller of Contracts and Stores. Ext. P 40 is the order issued on 5th Jan. 1983. That order is in supersession of all previous orders. So at the time of granting sanction Ext. P40 office order was in force. Ext. P 40 says that the powers of the Chairman, Managing Director have been delegated to various officers mentioned therein. The appellant was admittedly working in the stores department. Therefore the Controller of Contracts and Stores was the competent authority to initiate disciplinary proceedings against him. Ext. P 40 also says that such disciplinary authority has got power to award punishment such as dismissal, termination of service, suspension from service and stoppage of increments. The learned Counsel for the appellant pointed out that the powers conferred on the Controller of Contracts and Stores are not absolute and that he can take disciplinary proceedings only in consultation with the Manager (Personnel). This argument has been advanced on the basis of the last paragraph seen in Ext. P 40 wherein it is stated:
The procedure for taking disciplinary action may be followed in consultation with the Manager (Personnel).
The above clause will only indicate that the disciplinary authority has to follow certain procedure in taking such proceedings and the procedure is to be followed in consultation with the Manager (Personnel). The power conferred on the Controller of Contracts and Stores is absolute and he can remove any ‘workman’ in his department.
10. The learned Counsel for the appellant has also raised a contention that the appellant was not a workman as defined in the Industrial Employment (Standing Orders) Act, 1946. It was contended that the work in the diesel oil pump was done by the mazdoors and the appellant was only doing a supervisory work. It is difficult to accept the contention that the appellant was a supervisor. In fact, the appellant was put in charge of the diesel oil pump. The various receipts and vouchers issued by the appellant himself would show that he was the authorised person to issue diesel and to receive the incoming diesel from the Indian Oil Corporation. The learned Counsel for the appellant further contended that as per Section 2(1) of the Industrial Employment (Standing Orders) Act 1946 a person employed in a managerial or administrative capacity or a supervisory staff drawing wages exceeding Rs. 1650/- p.m. is not a workman and the counsel pointed out that the appellant was drawing more than that amount. No evidence was adduced to prove that he was getting a salary more than Rs. 1650/-, whereas at the time when he was questioned under Section 313, Cr. P.C. he stated that he was getting Rs. 958/- as salary. So, in any view of the matter, the appellant could only be a workman and the then Controller of Contracts and Stores had authority to initiate disciplinary proceedings and to terminate his service. Therefore, Ext. P 37 sanction order is proper,
11. The learned Counsel for the appellant raised another contention that the charge framed in this case is defective, as it is not in compliance with Section 219, Cr. P.C. It was contended that the appellant is accused in more than one offence of the same kind committed within a span of 12 months from the first to last of such offence and under Section 219 he cannot be charged and tried at one trial for more than 3 offences. It was pointed out that according to the prosecution case the appellant has committed series of offences and all these offences were committed within a span of 12 months and therefore, all the charges should not have been clubbed together. This contention cannot be accepted in view of Sections 212 and 220, of the Cr. P. C Clause (2) of Section 212 says that.
When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable properly in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items of exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219.
So also under Section 220, Sub-clause (2) it has been made clear that when a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) of Section 212 or Sub-section (I) of Section 219, is accused of committing for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence : Sub-clause (2) of Section 220 is a new provision incorporated in the Code by Amendment of the Cr. P.C. in 1973. This Sub-section (2) of Section 220 was incorporated to resolve the controversy as to whether the joinder of three charges of criminal breach of trust or misappropriation with three charges of falsification of accounts connected with those offences was permissible, even when all the offences have been committed within the space of twelve months. Criminal breach of trust or misappropriation is often accompanied by falsification of accounts or analogous offences committed either to facilitate the breach of trust or to conceal its commission. The exclusion of such connected offences of falsification of accounts from the fiction created by Section 212(2) deprives this Section 2 of its usefulness in many cases. Therefore the amendment of Section 220 was necessitated. Now the person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) or in Sub-section (1) of Section 219, is accused of committing for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. Therefore, the contention of the learned Counsel for the appellant that there is violation of the provision of Section 219 of the Code cannot be accepted.
12. The next contention urged by the appellant’s counsel is that the present conviction and sentence is not sustainable as it is violative of Section 300 of the Cr. P.C. On an earlier occasion the appellant was tried by the Special Judge for the same offence. The Special Judge discharged the accused slating that sanction order was not proper. The earlier judgment is not seen produced in this proceeding. However, it is admitted that he was tried by the Special Judge in C.C. 4/83 and the appellant was discharged. The main contention urged by the appellant’s counsel is that charges were framed against the appellant by the learned Special Judge and the Court followed the procedure prescribed under Chapt. XIX of the Cr. P.C. for the trial of the appellant. It is pointed out that the learned Special Judge had framed charges against the appellant and the appellant] had denied the charges and witnesses were examined by the prosecution and thereafter there could not have been a discharge of the accused under Section 239 of the Cr. P.C.
12A. The procedure for trial of warrant cases is described in Chapt. XIX of the Code. In any warrant cases instituted on a police report the trial of the accused commences when he appears before the Magistrate. Under Section 239 of the Code the Magistrate after considering the police report and the documents sent to him under Section 173 of the Code and after giving the prosecution and the accused an opportunity of being heard, shall determine whether the charge against the accused is groundless or not and if it appears to the Magistrate that the charges against the accused are groundless, the Magistrate shall discharge the accused and if upon such consideration and examination of the police report and the documents |the Magistrte is of the opinion that there is ground for perceiving that the accused has committed any offence triable under Chapt. XIX of me Code and that the Magistrate is competent to try that offence, he shall frame a charge in writing and the charge shall be read over and explained to the accused and the accused shall state whether he pleads guilty of the offence charged against him or claims to be tried. Under Section 241 of the Code if the accused pleads guilty, the Magistrate Shall record the plea and shall convict, him thereof. If the accused refuses to plead or does not plead or claims to be tried, the Magistrate shall fix a date for the examination of the witnesses and after conclusion of the trial the accused shall be acquitted or convicted under Section 248 of he Code. It is true that there is no specific provision in the Code under Chapt. XIX to discharge the accused once the charges have been framed against him. In the instant cast the appellant has been discharged in C.C. 4/83 for the reason that there was no proper sanction issued by the competent authority and therefore the Special Judge had no authority to take cognizance of the offence. Therefore the entire proceedings were non est.
13. The question that would arise for consideration is whether the discharge of the accused in C.C. 4/83 could be construed as an acquittal and if it is an acquittal a second trial for the same offence is barred under Section 300, Cr. P.C. Article 20(2) of the Constitution also may come into play. Article 20(2) lays down that no person shall be prosecuted and punished for the same offence more than once. Section 300, Cr. P.C. is more comprehensive in its scope than Article 20(2). Article 20(2) merely recognizes the principle of autrefois convict which is one of the principles recognized by Section 300, Cr. P.C. itself. In order to attract Article 20(2) a person must be both prosecuted and punished. A prosecution without punishment would not bring the case within Article 20(2). Article 20(2) does not contain the principle autrefois acquit at all. This has been left to be! regulated by the general law of the land. Where in the previous trial an accused has been acquitted, Article 20(2) does not bar the second trial for the same offence. In the present case the accused was discharged by the Special Judge even though there was no specific provision under Chapt. XIX of the Code to discharge the accused as a charge was already framed against the accused. The plea of the appellant that the 2nd trial for the same offence is opposed to the provisions of Section 300, Cr. P.C. cannot be accepted for two reasons. It cannot be held that the discharge of the accused in C.C. 4/83 would amount to acquittal. The Supreme Court in Ratilal Bhahji v. State of Maharashtra AIR 1979 SC 94 : 1979 Cri LJ 41 has dealt with a similar case. That was a warrant case instituted on complaint. The Supreme Court was called upon to decide as to whether a Magistrate can discharge the accused when once the charge is framed against him. In paras 26-A and 26-B of the above case the Supreme Court held that once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in the Code and once the charge is framed in a warrant cases, instituted either on complaint or police report, the Magistrate has no power under the Code to discharge the accused and he can either acquit or convict the accused. In para 26-B of the same judgment it has been further stated (at p. 48 of Cri LJ):
Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a ‘finding of not guilty’ turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.
14. In Mohammed Iqbal Aljimad v. State of A.P. it was held that any case instituted without proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. The learned special Judge discharged the accused for the reason that there was no proper sanction and that he had no jurisdiction to take cognizance of the offence and therefore the entire prosecution proceedings were void ab initio. Even though there is no specific provision in the Cr. P.C. the discharge of the accused was permissible, since the entire proceedings were void ab initio and the decision of the Supreme Court in Ratilal Bhanji’s case fortifies this view.
15. The contention of the learned Counsel for the appellant that the second prosecution is illegal cannot be accepted for another a son also. The accused in this case as soon as he received summons from the Special Judge in C.C. 1 of 1984 challenged the proceedings by filing a criminal M. C. 265/84. This Court rejected the contention of the accused and the prayer for quashing the proceedings in C.C. 1 of 1984 was disallowed. The finding entered by this Court in Cri. M. C. 265/84 would clearly create fetters and the accused is not entitled to raise the very same contention at a later stage. The order in the Criminal M.C. is passed in the very same proceedings. It is now well settled that the general principles of res judicata and estoppel would apply to criminal proceedings also. It has been held by the Supreme Court in State of Rajasthan v. Tarachand Jain 1973 SCC (Cri) 774 : 1973 Cri LJ 1396 that the decision of the High Court in revision is binding on the same High Court at a subsequent stage of the proceedings. This Court in V. Porinchuktty v. State of Kerala 1971 Ker LT 204 held that the issue estoppel is estoppel by judgment. The principle of it is that where an issue has been decided in a particular manner in a previous trial between the same parties it cannot be allowed to be reagitated. It is really an extension or a by-product of the doctrine of res judicata. There is nothing in the Code or any other enactment prohibiting its application. Therefore it is clear that the earlier finding in the Criminal M.C. in the very same proceedings is binding on the accused and he cannot be allowed to reagitate the same question. The order in the Criminal M.C. has become final. Hence the contention of the accused that the earlier discharge of the accused by the Special Judge in C.C. 4/83 should be construed as an acquittal cannot be accepted.
16. The evidence in this case clearly show that the appellant has manipulated several documents and that he misappropriated large quantities of diesel. It is the that there is no clear evidence to show that the accused had removed the diesel oil from the premises of the Shipyard. In the circumstances of the case, it is not necessary that there should be such evidence. When the requisition was for 190 litres of diesel he created documents to show that he issued 1900 litres of diesel thereby misappropriating 1710 litres. So also he made corrections in the ledger to make it appear that the total quantity of diesel was lesser than 2000 litres of the actual quantity. It is not proved that the mistakes in the ledger and the stores indenting vouchers are only clerical errors. It is quite possible that the accused might have removed diesel through some clandestine method. It is proved in this case that the Indian Oil Company supplied diesel through private contracts carriages. If would be easy for the store-keeper to have any deceitful alliance with these contract carriers. Therefore, I hold that the prosecution has succeeded in proving the guilt of the accused and he has been rightly convicted by the special Judge.
17. The accused has been given only the minimum sentence. However, the fine imposed on the accused is reduced from Rs. 15000/- to Rs. 10,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of 5 months in addition to the substantive term of imprisonment. As directed by the Special Judge the sentence of imprisonment shall run concurrently.
With the above modification in sentence the appeal is dismissed.