IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 883 of 1999()
1. M.V.MOHAMMED SHERIFF
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.BABU KARUKAPADATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :14/03/2008
O R D E R
A.K.BASHEER, J.
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Crl.A.Nos.882 & 883 OF 1999
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Dated this the 14th day of March 2008
JUDGMENT
These two appeals which are at the instance of the two
accused in C.C.12/98 on the file of the Enquiry Commissioner
and Special Judge, Thrissur are directed against the judgment
of conviction and sentence passed against them. The trial
court found the appellants guilty under Section 13(1)(c) read
with Section 13(2) of the Prevention of Corruption Act, 1988
and also under Section 120B, 409, 471 and 477A read with
Section 34 IPC. They were convicted and sentenced to
undergo rigorous imprisonment for four years each and to pay
a fine of Rs.25,000/- each and in default to undergo simple
imprisonment for 1= years each under Section 13(1)(c) read
with Section 13(2) of the Act. They were also sentenced to
undergo rigorous imprisonment for one year each under
Section 120B IPC; rigorous imprisonment for four years each
under Section 409 IPC; rigorous imprisonment for two years
each under Section 471 IPC; and rigorous imprisonment for
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three years each and to pay a fine of Rs.20,000/- each and in
default to undergo simple imprisonment for 1= years each
under Section 477A IPC.
2. Vigilance and Anti Corruption Bureau, Idukki had
charge sheeted the appellants for the offences mentioned
above. Prosecution case in brief was that accused No.1 was
working as Special Deputy Tahsildar, Cardamom Settlement
at Devikulam during July 1993 while accused No.2 was the
Special Village Officer in the office of accused No.1. The two
accused being public servants had hatched a criminal
conspiracy during July 1993 pursuant to which they collected
a sum of Rs.2,22,800/- towards land conservancy charges
from certain landholders (PW1 and PW2). The accused had
collected the money between July 8, 1993 and August 11,
1993 and issued T.R.5 receipts in acknowledgment thereof.
The said money was misappropriated by the accused without
entering the same in the cash book or remitting it at the Sub
Treasury, Devikulam. Prosecution alleged that for the above
purpose accused had falsified the entries in the cash book and
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dishonestly cancelled the Counter Foils of T.R.5 receipts.
They had used the counter foil receipts as genuine with intent
to make them appear that collections were not effected under
those receipts.
3. Before the trial court, the prosecution had examined
PW1 to PW9 and Exts.P1 to P30 were marked on its side. On
the side of the defence DW1 was examined and Exts.D1 to D9
were marked.
4. The court below after considering the oral and
documentary evidence on record took the view that the
prosecution had succeeded in proving the charge against the
accused and accordingly they were convicted and sentenced
as mentioned above.
5. PW1 deposed before the court that three land
conservancy cases relating to him and his close relatives were
pending before the Cardamom Settlement Officer. These
three cases were L.C.Nos.35/93, 34/93 and 40/93. In addition
to the above, there were seven other land conservancy cases
also, in respect of the land purchased by his close relatives
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from PW2. He further stated that he had remitted a total sum
of Rs.2,22,800/- as land conservancy dues (prohibitory tax) in
respect of all these cases. The payment was made by him on
behalf of his relatives/land holders as authorised by them.
PW1 stated that the above sum of Rs.2,22,800/- was entrusted
by him to accused No.1 for which ten receipts signed by
accused No.1 were issued. He further stated that accused
No.2 had written these receipts. He had also seen accused
No.1 putting his signature in them. But a little later in the
course of his examination PW1 stated that he did not see
accused No.2 writing the receipts, though it was he who had
brought these receipts before accused No.1 for signature.
According to this witness, accused No.2 and PW2 came to his
residence after about 1= to 2 months and returned the
money. On receipt of the money he gave back the ten
receipts to accused No.2. Those receipts were marked in the
case as Exts.P4(a), P4(c), P4(e), P5 to P10 and P18.
According to PW1, no dates had been entered in these
receipts. In cross examination, PW1 stated that he and his
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wife were not available at home for most of the days during
that period. To a suggestion made on behalf of the accused
that the amount had been paid back to him on the second day
itself, it was stated by PW1 that he had not received the
money within two days.
6. PW2 deposed before the court that he had entered
into an agreement for sale of about 100 acres to PW1 and his
close relatives. He conceded that ten land conservancy cases
in respect of the above land had been pending before the
Deputy Tahsildar, Cardamom Settlement Office, Devikulam.
This witness also stated that he had gone along with accused
No.2 to repay the sum of Rs.2,22,800/- to PW1. He further
deposed that PW1 had remitted the amount at the Cardamom
Settlement Office on his behalf and other landholders. He
also stated that accused No.2 had received the ten receipts
after the amount was repaid to PW1. At that time, accused
No.2 had put the date as November 16, 1993 in the receipts.
I will refer to the evidence of PW2 in detail, a little later.
7. PW3, who was working as the Assistant Settlement
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Officer, Cardamom Settlement Office at Devikulam, deposed
before the court that at the relevant point of time accused
No.1 was the Deputy Tahsildar at Nedumkandam, and he was
in additional charge of Devikulam Cardamom Settlement
Office also at that time. He further stated that accused No.2
was the Village Officer in that office under accused No.1.
Therefore, he could identify the handwriting and signature of
the accused in Exts.P4(a) to P4(l) receipts and counterfoils.
He stated that the handwriting in those documents were that
of accused No.2. The signature in Exts.P4(c) to P4(e) was
that of accused No.1. The other handwritings and signatures
of the two accused were also identified by PW3. He also
identified Ext.P20 cash book maintained at the Devikulam
office. With reference to pages 35 to 59 in Ext.P20, which
was for the period from 8th July 1993 till December 31, 1993,
he stated that there was no corresponding entry with regard
to the T.R.5 receipts for accepting the sum of Rs.2,22,800/-
from PW1. He also stated that Exts.P1, P1(b), P2(b), P11(b),
P12(b), P13(b), P14(b), P15(b), P16(b) and P17(b) orders were
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passed by accused No.1 on July 22, 1993. Prohibition
assessment to be collected from the land holders in those
cases was reckoned on the basis of the rate mentioned in
those orders. Demand notices in respect of Exts.P1 to P3 and
P11 to P17 could have been issued only after the date of the
order viz. July 22, 1993. All the demand notices were signed
by accused No.1. In Ext.P20(a) just below the opening
balance it was noted as follows: “Receipt Nos.44 to 46
cancelled.” The said handwriting was not that of accused
No.2. He further stated that he could not say whether the
handwriting was that of accused No.1. Similarly, entries in
respect of the other T.R.5 receipts were also referred to by
PW3. He also spoke about the orders of cancellation of L.C.
proceedings in Exts.P1 to P3 and Ext.P11 to P17. He
admitted that no date was seen on the orders of cancellation.
In cross examination, PW3 stated that Ext.P19(b)
representation submitted by PW2 and others was received by
him with an endorsement made by the Revenue Minister. In
Ext.P19(b), it was requested by PW2 and others that they may
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be allowed to remit the arrears of dues under the Land
Conservancy Act amounting to Rs.4,50,000/- without insisting
for interest. On the said representation, the Minister for
Revenue and Law had put a note directing the Assistant
Settlement Officer, Kumili to take “urgent necessary action
excluding interest”. Consequently, Ext.P19(c) communication
was sent on July 15, 1993 by PW3 to the Cardamom
Settlement Officer, Devikulam (CW15) informing him that
necessary direction had been issued to the Special Deputy
Tahsildar, Devikulam (accused No.1) to collect L.C. dues
excluding interest and also to proceed in the matter “as per
L.C. Act’. It is seen from Ext.P19(c), that copy of the said
communication was marked to accused No.1 for necessary
action. PW3 also deposed that CW15 had told him that the
L.C. proceedings initiated against PW1, PW2 and others were
not proper or correct especially since the High Court, the
Government and the Civil Court at Thodupuzha had issued
orders interdicting the Department from initiating such
action. CW15 had further instructed PW3 to cancel the L.C.
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proceedings initiated already. PW3 conceded that all these
instructions issued to him by CW15 were only oral. He
further stated that on the next day he had summoned accused
1 and directed him to cancel the L.C. proceeding. When
accused No.1 had informed him that he had already collected
the L.C. dues, he was directed to refund the same. In answer
to a specific question in cross examination, PW3 stated that
accused 1 had cancelled the L.C. proceeding and refunded the
money only on the basis of the direction issued by him and
CW15.
8. PW4, the Sub Treasury Officer, Devikulam deposed
that the amount of Rs.2,22,800/- collected by the accused
under T.R.5 receipts had not been remitted at the Sub
Treasury. He proved Exts.P22 and P23 Subsidiary registers
in this connection. PW5 stated that he had received the
sanction order to prosecute the appellants, which was marked
as Ext.P24. PW6 registered the first information report
(Ext.P25). PW7 conducted preliminary investigation. PW8
stated that he had questioned PW5. PW9 completed the
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investigation and laid the charge sheet before the court.
9. While assailing the order of conviction and sentence,
learned counsel appearing for the two accused have
vehemently contended that the court below had proceeded at
a totally wrong tangent overlooking the inherent flaws in the
prosecution case. It is pointed out by the learned counsel that
the evidence of PW3 will clinchingly show that the accused
were totally innocent. They further contend that the
prosecution had tried to suppress very many material
documents in an attempt to cover up the real story behind the
prosecution case. It is the specific case of accused No.1 that
he had initiated L.C. proceedings against PW1, PW2 and
others as per the provisions contained in the L.C. Act and the
Rules as could be seen from Exts.P1, P2, P3, P11 to P17 (‘b’
series). He had also collected the L.C. dues and issued T.R.5
receipts. But he was informed by PW3 to refund the amount
to PW1, if it had already been collected. He was further
directed to cancel L.C. proceedings which were initiated
already.
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10. It is curious to note that PW3, who is the superior
officer of accused No.1, had claimed that he had issued the
above orders as per the oral instructions received by him from
CW15, who was his superior officer. Strangely, CW15 was
not examined by the prosecution. No attempt was also made
by the prosecution to explain on what basis PW3 had issued
such orders on the strength of some oral instructions
allegedly issued by CW15.
11. A perusal of the deposition of PW3 coupled with
Exts.P19(b) and P19(c) will undoubtedly cast a dark shadow
over the entire prosecution case. PW3 for some unknown
reason had not been declared hostile because obviously his
evidence was detrimental to the prosecution case. It may be
noticed that the entire prosecution case was primarily
projected through the evidence of PW3, who was the only
official witness who gave evidence as regards the collection of
the L.C. dues and the alleged failure of the accused to remit it
in the treasury.
12. But according to the learned Public Prosecutor the
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evidence of PW3 had brought out that the accused had failed
to remit the money collected by the accused in the treasury
on the same day or atleast on the next working day itself.
Similarly, the accused had also failed to enter the collection in
Ext.P29 cash book. This clearly proved that the accused had
misappropriated the money collected from PW1. The
evidence of PW1 showed that he had received the money back
from accused No.2 only after about 45 days. Learned Public
Prosecutor submits that the accused had illegally kept the
money with them during the entire period without remitting it
to the treasury or even entering it in the cash book.
Therefore, the accused had committed the offence alleged
against them, it is contended.
13. In response to the above contention, it is submitted
on behalf of the accused that PW3 himself had deposed before
the court that in the event of occurrence of any mistake in the
cash receipt or if the party refused to remit the entire amount
after preparation of the receipt the collection need not be
entered in the cash book. It is contended by the learned
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counsel that shortly after collecting the money the accused
had been informed by PW3 that it had to be refunded to PW1.
Though the accused had attempted to make refund, PW1 was
not available at his residents.
14. The above explanation, which is apparently feeble, if
not puerile, cannot be accepted. But as mentioned earlier,
the evidence of PW3 will lend some support to the defence
version that the amount was kept in the office pursuant to the
direction issued by PW3. In this context, it may also have to
be noticed that there was some attempt on the part of the
prosecution to cover up the fact that someone else was
interested in scuttling the entire prosecution, be they the
superior officers of the accused or some outside agencies.
15. In this context, it may also be pertinent to note that
neither PW1 nor PW2 had lodged any complaint against
collection of the money from them especially in the backdrop
of issuance of orders of cancellation of the L.C. Proceedings.
It is not discernible from the file as to why PW3 had
instructed accused No.1 to issue orders of cancellation of the
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L.C proceedings because in Ext.P19(c) he had informed CW15
that accused No.1 had been directed to continue with the L.C.
Proceedings. As mentioned earlier, there existed some
gaping holes in the entire story.
16. It may also be noticed that Ext.P25, F.I.R. was
registered more than 2 years after the alleged commission of
the offences. Of course, learned Public Prosecutor has sought
to explain it away by saying that for the enquiry contemplated
under the annal relating to Vigilance cases, some delay was
inevitable. But, still for the reasons stated above, I am not
satisfied with explanation given by the accused for
withholding remittance of the amount in the treasury for more
than 1 = months. However, the fact remains that the money
had been refunded and the original T.R.5 receipts were taken
back from PW1.
17. The prosecution had also not explained why the L.C.
Proceedings initiated against PW1 and other landholders had
been cancelled. Therefore, obviously there was something
more what meets the eye in the delay in registering the case
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against the accused. As per the court charge the accused had
collected Rs.2,22,800/- towards L.C. Charges as per T.R.5
receipts during the period from 8.7.1993 to 11.8.1993. But no
evidence has been adduced by the prosecution that the
accused had actually collected the money during the period
mentioned above. More importantly the above charge
against the version given by PWs 1 and 2 in the case.
18. It is vehemently contended by the learned counsel
for the two accused that the entire evidence, even if it
accepted on its face value, will not show that there was
fraudulent or dishonest intention on the part of the accused in
the alleged transaction. Accused had acted only in
accordance with the directions and instructions received from
their superior officers. But as noticed already, the superior
officer (PW3) had given a very hazy and evasive version of the
entire episode. CW15 who was the superior officer of PW3
was never examined. Thus, it remained a mystery as to why
L.C. proceedings which were initiated against PW1 and other
landholders had been cancelled. If the above aspects are
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considered in the backdrop of Exts.P19(b) and (c) and also the
orders of cancellation of the L.C. Proceedings, I am satisfied
that the accused are entitled to get the benefit of doubt.
Therefore, the judgment passed by the court below is set
aside. The appellants are found not guilty and they are
acquitted.
Appeals are allowed.
(A.K.BASHEER, JUDGE)
jes
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A.K.BASHEER, J.
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Crl.A.Nos.882 & 883 OF 1999
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JUDGMENT
Dated 14th Mar. 2008