IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 816 of 2000()
1. JOSE MATHEW
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :10/07/2008
O R D E R
A.K.BASHEER, J.
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Crl.A.No.816 OF 2000
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Dated this the 10th day of July 2008
JUDGMENT
Appellant was tried before the Enquiry Commissioner and
Special Judge, Thrissur for the offence punishable under Section
5(1)(c) and (d) read with Section 5(2) of the Prevention of
Corruption Act, 1947 and also under Sections 409 and 477 A IPC.
The trial court found the appellant guilty of the charges levelled
against him and he was accordingly convicted and sentenced to
undergo rigorous imprisonment for four years and to pay a fine of
Rs.7 lakhs under Section 5(1)(c) read with Section 5(2) of the
Act. In default of payment of fine, the appellant was directed to
undergo simple imprisonment for 1= years under Section 5(1)
(c). Appellant was further sentenced under Section 5(1)(d) read
with Section 5(2) of the Act to undergo rigorous imprisonment
for four years. He was also sentenced to undergo rigorous
imprisonment for 4 years under Section 409 and 2 years rigorous
imprisonment under Section 477 A IPC. It was directed that the
substantive sentence of imprisonment shall run concurrently.
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Set off was also allowed under Section 428 of the Code of
Criminal Procedure. The above order of conviction and sentence
is under Challenge in this appeal.
2. At the very outset, it has to be noticed that the appellant
is reportedly dead. But the wife and children of the
deceased/appellant has obtained leave of this court to prosecute
the appeal obviously for the reason that the deceased/appellant
was imposed with a fine of Rs.7 lakhs.
3. I have heard learned counsel for the appellant and
Sri.P.N.Sukumaran, the learned Public Prosecutor.
4. The prosecution case in a nut shell was that the
appellant was working as an Assistant Engineer (Stores) in the
Kerala Agricultural University at Mannuthi during 1986. He was
in charge of the stores in the University. On a stock verification
of the materials at the stores, it was noticed that there was a
shortage of 78,617Kgs of tore steel. According to the
prosecution, the shortage had occurred during the period from
January 1, 1986 till December 12, 1986. The total value of steel
found short, was reckoned as Rs.5,73,904/-. The prosecution
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alleged that the appellant being a public servant had abused his
official position by corrupt and illegal means and obtained or
procured undue pecuniary advantage by indulging in the criminal
acts of falsification of account, criminal breach of trust, etc. with
dishonest intention.
5. The prosecution had examined PWs 1 to 7 and marked
Exts.P1 to P43 on its side. DWs1 to 6 were examined and Ext.D1
to D11 were marked on the side of the defence.
6. The trial court, after an elaborate and careful
consideration of the oral and documentary evidence adduced by
the prosecution, came to the conclusion that the charge levelled
against the appellant had been clearly established. It was thus
that the appellant was found guilty and convicted and sentenced,
as mentioned earlier.
7. Learned counsel for the appellant contends that the
court below had egregiously erred in relying on the evidence
adduced by the prosecution which by itself was totally
untrustworthy. Learned counsel points out that the trial court
had not properly appreciated the oral and documentary evidence
Crl.A.No.816 OF 2000
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adduced by the accused.
8. The material witnesses on the side of the prosecution
were PWs2, 3 and 5. PW2 was working as the Financial Assistant
in the University at the relevant point of time. He had prepared
Ext.P2 statements of stock for the period from January 1, 1986
till December 12, 1986. In the said statement, which bore the
signature of PW2, it was recorded that there was a shortage of
12704 kg. of 25 m.m. tore steel, 28687 kg. of tore steel of 20m.m.
thickness, 13401 kg. of 16 m.m. and 23825 Kg. of 10 m.m. tore
steel. He further stated that he had produced the relevant
records before the Vigilance Court. Exts.P3 and P4 “Prized Store
Ledger” (Volume I and II) were also marked through PW2.
Ext.P5, indent ledger was also marked through PW2. Similarly,
this witness had produced Exts.P6 to P9 daily receipts and issue
registers, Exts.P10 to P15 GPS (Goods Received Sheet) etc. A
perusal of the deposition of PW2 will clearly show that he had
referred to all the details of the stock position available on the
date of verification. He further stated that the value of the stock
of steel which was found short was fixed on the basis of Ext.P26
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proceedings of the Director of Physical Plant of the University.
9. PW3 was the immediate successor of the
appellant/accused. He deposed before the court that he had
assumed charge from the appellant on November 4, 1986.
Ext.P27, charge report was prepared on December 12, 1986.
The physical balance available as on that day was recorded in
Ext.P27 in which he himself and the accused had signed. PW3
has also referred to the shortage of tore steel of various
thicknesses in his deposition. He had also spoken about the
procedure to be followed for the inward and outward movement
of tore steel from the store and the manner in which the various
registers had to be maintained at the store by the person in
charge. He also stated that the appellant in his capacity as
Assistant Engineer (Stores) was the custodian of the construction
materials which were kept in the yard.
10. PW5 was the Senior Grade Auditor of the University
during 1987. Ext.P34 report prepared by him and
Sri.K.V.Bharathan, Inspector, Local Fund Audit was marked
through this witness. He found that anomaly to the tune of
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Rs.7,62,998 was detected during the audit. This witness had also
spoken about the various anomalies noticed during the course of
audit as regards the stores where the construction materials
were kept. Of the other witnesses who were examined on the
side of the prosecution, PW1 had proved Ext.P1 sanction order
for prosecution. PW4 was the Superintendent of Police who had
registered crime against the accused and PW6 was the
Investigating Officer who conducted the investigation. PW7, the
Dy.S.P. laid the charge sheet before the court.
11. As mentioned earlier, the evidence of the prime
witnesses namely PWs2, 3 and 5 did clearly establish that the
prosecution had succeeded in proving the charge against the
accused. I have been taken through the depositions of the entire
prosecution witnesses and also that of the defence witnesses.
12. It is contended by learned counsel for the appellant that
the evidence of DWs1 and 2 will show that appellant was not
solely responsible for the shortage in the stock. But the evidence
of these witnesses had been elaborately discussed by the trial
court. I do not deem it necessary to refer to the evidence of
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those witnesses at this stage in detail. Suffice it to say that the
defence had not succeeded in making any dent in the prosecution
case. It is true that DW1 and DW3 to 6 who were former
employees of the Agricultural University had made an attempt to
suggest that the procedure followed for maintenance and release
of stock in the Store in the University all along had not been
above board or fool proof and many irregular practices were
prevalent in the Store management. The obvious attempt of the
above witnesses was to create confusion or suspicion in the mind
of the court as regards the inward and outward movement of the
materials of the store.
13. Having carefully perused the entire materials available
on record and also the depositions of the witnesses examined in
the case, both on the side of the prosecution and the defence, I
am satisfied that the trial court was right in holding the appellant
guilty of the offences alleged.
14. What remains is only the quantum of sentence imposed
on the appellant, especially the fine of Rs.7,00,000/- imposed on
him under Section 5(1)(c) of the Act. The specific case of the
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prosecution was that the loss sustained by the University due to
shortage of the stock was to the tune of Rs.5,73,904/-. According
to PW2, who was the Financial Assistant of the University, the
above sum was quantified on the basis of Ext.P26 proceedings of
the Director of Physical Plant. It was admitted by PW2 that the
amount of Rs.5,73,904 included establishment damage, storage
charge, supply bill charge, etc. The prosecution had not
adduced any evidence to show what was the exact amount under
the head of establishment damage, storage charge, etc.
Similarly, it was admitted by PW2 that Ext.P26 proceedings of
the D.P.P. was relied on for fixing the value of tore steel which
was found short. A perusal of Ext.P26 will show that it was only
a photocopy of a proceedings allegedly issued by the D.P.P. It
was also admitted by PW2 that the value was fixed in the year
1998 based on Ext.P26. However, the accused had never
challenged marking of Ext.P26 in the case. Therefore, I am not
persuaded to totally discard Ext.P26. But still, in the absence of
any evidence to show what was the establishment damage,
storage charge, etc., I am of the view that the fine imposed on
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the appellant is on the higher side.
Having regard to the peculiar facts and circumstances of
the case, I am satisfied that ends of justice will be met, if the fine
amount imposed on the appellant is reduced particularly since he
is no more. For the reasons stated above, while confirming the
order of conviction, the amount of fine is reduced from
Rs.7,00,000/- to Rs.5,00,000/-. With the above modification in
the amount of fine, the appeal is closed.
(A.K.BASHEER, JUDGE)
jes
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A.K.BASHEER, J.
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JUDGMENT
Dated 10th July 2008