IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1 of 2002()
1. K.GANGADHARAN NAIR,FORMER SPECIAL GRADE
... Petitioner
Vs
1. VIGILANCE AND ANTI-CORRUPTION BUREAU,
... Respondent
2. STATE OF KERALA, REP; BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/01/2011
O R D E R
M.Sasidharan Nambiar, J.
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Crl.A.No.1 of 2002
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JUDGMENT
Appellant was Special Grade Executive Officer
of Parathode Grama Panchayat during 1993-94. He was
convicted and sentenced for the offences under
Sections 13(1)(c) and 13(1)(d) read with Section 13
(2) of Prevention of Corruption Act and Sections
409 and 477A of Indian Penal Code. Prosecution case
is that appellant dishonestly and fraudulently
misappropriated Rs.52,576/-, which was received by
him from Service Co-operative Bank, Koovappally as
interest for the fixed deposits made by the Bank
under Exhibits P4 to P15 vouchers by not accounting
the same and he omitted to show receipt of the
money and thereby falsified the account and
committed the offences. Appellant pleaded not
guilty when charge for the offences under Sections
13(1)(c) and 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act and Sections 409 and
CRA 1/02 2
477A of Indian Penal Code were framed, read over
and explained to him.
2. Prosecution examined ten witnesses and
marked Exhibits P1 to P22. After closing the
prosecution evidence, appellant was questioned
under Section 313 of Code of Criminal Procedure and
was called upon to enter on his evidence and adduce
evidence, if any. On the side of the appellant
Exhibits D1 and D2 were marked. No oral evidence
was adduced.
3. Learned Special Judge, on the evidence,
convicted and sentenced the appellant to rigorous
imprisonment for four year and a fine of
Rs.75,000/- and in default, simple imprisonment for
1= years for the offence under Section 13(1)(c)
read with Section 13(2) of Prevention of Corruption
Act. Though appellant was convicted for the offence
under Section 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act also, in view of the
sentence awarded for the offence under Section 13
CRA 1/02 3
(1)(c), no separate sentence was awarded. He was
convicted and sentenced to rigorous imprisonment
for four years and two years respectively for the
offences under Sections 409 and 477A of Indian
Penal Code. The substantive sentences were directed
to run concurrently. He was also granted set off as
provided under Section 428 of Code of Criminal
Procedure. This appeal is filed challenging the
conviction and sentence.
4. Learned counsel appearing for the appellant
and learned Public Prosecutor were heard.
5. Argument of the learned counsel appearing
for the appellant is that there is no conclusive
evidence to prove that appellant has
misappropriated Rs.52,576/- as found by the learned
Special Judge. Learned counsel vehemently argued
that appellant has accounted receipt of the amounts
covered by Exhibits P4 to P15 vouchers and
prosecution did not produce the material documents
establishing the payment and on the available
CRA 1/02 4
evidence, the conviction is not sustainable.
Learned counsel pointed out that Exhibit P17, the
statement obtained from Koovappally Service Co-
operative Bank, which shows receipt of the amounts
covered by Exhibits P4 to P15 vouchers, establish
that Rs.52,576/- was adjusted and prosecution
failed to produce material records, namely, the day
book maintained by the Panchayat for 31.1.1994 and
1.2.1994 and also the Fixed Deposit Certificates
and argued that the conviction is not sustainable.
It is also argued that when Exhibit P1 order
granting sanction to prosecute does not provide for
prosecuting appellant for the offence under Section
477A of Indian Penal Code, conviction of the
appellant for the said offence is bad for want of
sanction. Learned counsel also submitted that
learned Special Judge did not afford sufficient
opportunity to the appellant to adduce evidence and
even though a petition was filed to produce the
cash book for January 1994, it was not produced and
CRA 1/02 5
in such circumstances, it was submitted that an
opportunity is to be granted to the appellant to
call for the necessary records and examine the
relevant witnesses.
6. Learned Public Prosecutor submitted that
learned Special Judge appreciated the evidence in
the proper perspective and there is no reason to
interfere with the conviction and sentence. It was
pointed out that Exhibits P4 to P15 vouchers
establish that Rs.52,576/- was received by the
appellant from Koovappally Service Co-operative
Bank, being the interest payable for the fixed
deposits and appellant did not account for receipt
of the interest and thereby, misappropriated the
amount. It was argued that by omitting to show
receipt of the amounts, covered by Exhibits P4 to
P15 vouchers, appellant falsified the account and
in such circumstances, the conviction is perfectly
legal.
CRA 1/02 6
7. Following points arise for consideration:
i. Whether appellant received Rs.52,576/- on
31.1.1994 from Koovappally Service Co-operative
Bank under Exhibits P4 to P15 vouchers?
ii. Whether appellant accounted receipt of the
said amount in the account of Parathode Grama
Panchayat?
iii. Whether appellant misappropriated
Rs.52,576/- received under Exhibits P4 to P15
vouchers?
iv. Whether conviction of the appellant for the
offences under Sections 13(1)(c) and 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act
and Sections 409 and 477A of Indian Penal Code is
sustainable?
Points:
8. The fact that appellant was the Special
Grade Executive Officer of Parathode Grama
Panchayat during December 1993 and January 1994 is
not disputed. The fact that Rs.6,75,000/- was
CRA 1/02 7
deposited by the Grama Panchayat in Koovappally
Service Co-operative Bank under Certificate Nos.
1836, 1853, 1908, 1919, 1925, 2096, 2097, 4193,
4194, 4207, 4210, 4232, 2381, 2407 and 3644
respectively on 2.5.1988, 12.5.1988, 15.7.1988,
1.8.1988, 19.8.1988, 12.7.1989, 12.7.1989,
16.4.1990, 16.4.1990, 18.4.1990, 19.4.1990,
30.4.1990, 11.10.1991, 14.10.1991 and 30.12.1992 is
also not disputed. Grama Panchayat is entitled to
get interest for the amount so deposited.
Prosecution case is that towards interest,
appellant received Rs.52,576/-, evidenced by
Exhibits P4 to P15 vouchers. Exhibits P4 to P15 are
respectively for Rs.2,125/-, Rs.5,500/-,
Rs.4,250/-, Rs.3,300/-, Rs.4,400/-, Rs.1,651/-,
Rs.5,500/-, Rs.4,950/-, Rs.4,400/-, Rs.5,500/-,
Rs.5,500/- and Rs.5,500/-. Those vouchers were
issued by the appellant for receipt of the interest
due under Certificate Nos. 2096, 1925, 2097, 4210,
4232, 3644, 1919, 4194, 4207, 1908, 1836 and 1853
CRA 1/02 8
respectively. The fact that Exhibits P4 to P15
vouchers contain the endorsement of the appellant
for receipt of the amounts from the Bank is also
not disputed at the time of evidence. Prosecution
case is that appellant did not account for the
receipt of Rs.52,576/-, evidenced by Exhibits P4 to
P15.
9. Evidence of PW2, the then Panchayat
Inspector attached to Deputy Director Office,
Kottayam Panchayat, establishes that he had
verified the records of Parathode Grama Panchayat
and submitted Exhibit P2 report. He had examined
the entire records maintained by the Panchayat and
found that receipt of the amounts covered by
Exhibits P4 to P15 vouchers were not entered in any
of the records of the Panchayat. That evidence of
PW2 was not challenged in cross-examination.
Exhibit P3 is the Receipt Register of Prathode
Grama Panchayat for the period 15.4.1993 to
26.7.1994. The relevant entries in Exhibit P3 on
CRA 1/02 9
31.1.1994 or 1.2.1994 do not show receipt of the
amounts covered by Exhibits P4 to P15 vouchers.
10. Evidence of PW3, Secretary of Koovappally
Service Co-operative Bank, who proved Exhibit P17,
the Cash Scroll Extract and Exhibit P16, the
details of the fixed deposits, with Exhibits P4 to
P15, establish that amounts covered by Exhibits P4
to P15 were received by the appellant from the
Bank.
11. Evidence of PW4, the then Secretary of
Koovappally Service Co-operative Bank, also prove
that amounts covered by Exhibits P4 to P15 vouchers
were received by the appellant himself. Evidence of
PW6, the Cashier of the Bank, also establishes that
fact. Evidence of PW8, the then Secretary of
Parathode Grama Panchayat, also prove that amounts
were received by the appellant. Even though
appellant had raised a contention that he has
accounted the amounts received and stated so when
questioned under Section 313 of Code of Criminal
CRA 1/02 10
Procedure, he has no specific case as to how the
amounts received under Exhibits P4 to P15 vouchers
were accounted.
12. Learned counsel appearing for the
appellant, relying on Exhibits D1 and D2 and Rule
29 of Kerala Panchayats (Accounts) Rules, 1965,
argued that as provided under Rule 29, receipt of
money should be entered in the register of receipts
and thereafter in the cash book and in spite of the
contention of the appellant that he has accounted
for the amounts, the relevant cash book for
31.1.1994 was not produced. Argument is that if it
was produced, it would have shown that amounts
covered by Exhibits P4 to P15 were accounted.
Learned counsel argued that as the relevant
document was suppressed, an adverse inference has
to be drawn and it is to be found that appellant
has not misappropriated the amount and had properly
accounted for the same.
CRA 1/02 11
13. Rule 29 of Kerala Panchayats (Accounts)
Rules, 1965, which was the Rule governing the field
during the relevant period, provides how moneys
received is to be dealt with. Rule 29 reads:
“29. All moneys received to be entered in Register
of Receipts:- (1) All money received by the
Executive Authority or under his authority by an
officer or servant of the Panchayat (including a
Government servant whose services have been
placed at the disposal of the Panchayat) in his
capacity as such, shall be brought into account as
soon as they are received by entering in the
Register of Receipts in Form No.XXVII.
(2) Money received through postal money orders
shall be first entered in the Register of Money
Orders in Form No.XXVIII. All money so received
shall be paid into the Panchayat office daily.”
Under the said Rule, all moneys received by the
Executive Authority or under his authority by any
officer shall be brought into the account by
entering in the Register of Receipts in Form No.
XXVII. Rule 30 provides that no money received on
behalf of the Panchayat shall be utilised for its
expenditure, without it being brought into account
CRA 1/02 12
and paid or remitted into the Treasury or Post
Office Savings Bank where the Panchayat fund is
lodged.
14. If the case of the appellant is correct and
he had accounted for the receipt of the amounts
covered by Exhibits P4 to P15, immediately on
receipt of the amounts, he should have entered
receipt of the amounts covered by Exhibits P4 to
P15 vouchers in the Register of Receipts as
provided under Rule 29 of Kerala Panchayats
(Accounts) Rules. As provided under Rule 30, he
should have thereafter remitted the amount into the
Treasury after showing it in the cash book. Exhibit
P3 is the Register of Receipts in Form No.XXVII
maintained by the Panchayat as provided under the
Accounts Rules. Exhibit P3 receipt does not show
that amounts covered by Exhibits P4 to P15 were
accounted. Argument of the learned counsel
appearing for the appellant is that Exhibit P3
register is not properly maintained and the entries
CRA 1/02 13
for the months ending on 31.12.1993 and 31.1.1994
and subsequent months were not signed by the
Special Grade Executive Officer. It is seen from
Exhibit P3 that even though seal of the appellant
was affixed on the relevant page where receipts for
the month of December 1993 is entered, it is not
seen signed by the appellant. So also, for the
subsequent months, the details are entered into,
but they are not seen signed. The person to sign
the register is none other than the appellant.
Being the executive authority, it is for the
appellant to maintain the records and registers
properly. If appellant is not maintaining the
register properly, he cannot rely on the non-
maintenance of the records as a ground to canvass
the contention that amounts received were accounted
for. As provided under Rule 29 of Kerala Panchayats
(Accounts) Rules, immediately on receipt of the
amounts, appellant should have entered the receipts
in Exhibit P3 register. When Exhibit P3 register
CRA 1/02 14
shows that receipt of Rs.52,576/-, covered by
Exhibits P4 to P15 vouchers, were not accounted,
appellant cannot be heard to contend that he had
accounted the amounts.
15. Though learned counsel appearing for the
appellant argued that because of the non-production
of the cash book for 31.1.1994 and 1.2.1994, it
cannot be said that amounts received were not
entered in the cash book and therefore, prosecution
case is to be disbelieved, on the evidence, I
cannot accept the case. First of all, evidence of
PW2 stands unchallenged. Evidence of PW2 is that he
had verified the entire records maintained by the
Panchayat and found that receipt of the amounts
covered by Exhibits P4 to P15 was not entered in
any of the registers. Though PW2 did not
specifically depose that it is not entered in the
cash book, his evidence is that in none of the
registers maintained by the Panchayat, receipt of
the amounts covered by Exhibits P4 to P15 vouchers
CRA 1/02 15
were entered into. This evidence of PW2 was not
challenged. Appellant has no case, when PW2 was
cross-examined, either that PW2 did not verify the
cash book or that the cash book contained the
entries for receipt of the amounts covered by
Exhibits P4 to P15. Even when appellant was
questioned under Section 313 of Code of Criminal
Procedure, he has no case that receipt of the
amounts covered by Exhibits P4 to P15 vouchers was
entered in the cash book. Therefore, I cannot
accept the submission of the learned counsel
appearing for the appellant that for non-production
of the cash book, it is to be found that amounts
covered by Exhibits P4 to P15 vouchers were
accounted. If the amounts covered by Exhibits P4 to
P15 vouchers were accounted, necessarily, as
provided under Rule 30 of Kerala Panchayats
(Accounts) Rules, the amount should have been
remitted to the Treasury. Appellant has no case
that the amount was remitted to the Treasury. If
CRA 1/02 16
there was remittance, he could have produced the
relevant records or could have taken steps to
produce the records from the Treasury.
16. Argument of the learned counsel appearing
for the appellant is that appellant had filed a
petition at the defence evidence stage for issuing
summons to the Grama Panchayat to produce various
documents, including the cash book and still the
cash book was not produced. It is, therefore,
argued that an opportunity should be granted to
cause production of the cash book and establish
that amounts were accounted for. I find from the
records that after closing the prosecution evidence
and questioning the appellant under Section 313 of
Code of Criminal Procedure, appellant was called
upon to adduce defence evidence. It is thereafter
appellant filed Crl.M.P.No.588/2001, praying to
issue summons to the Secretary, Parathode Grama
Panchayat, to produce the Register of Receipts and
payments, for the year 1994-95, the cash book of
CRA 1/02 17
the Panchayat for the year 1994-95, the Local fund
Audit Report for the year 1994-95 and the Annual
Finance Statement for the year 1994-95. Paragraph
16 of the judgment of the learned Special Judge
shows that Parathode Grama Panchayat had produced
the records. It shows that Register of Receipts
was for the period 27.7.1994 to 9.6.1995 and from
1.2.1994 to 31.3.1995. Cash Book produced was for
the period 1.3.1994 to 29.2.1996. It was submitted
before the learned Special Judge that Receipt
Register for the period 15.4.1994 to 16.7.1994 was
seized by the Vigilance during investigation and no
audit was conducted during the year 1994-95 by the
Local Fund Audit and as such, the finance statement
was not available. Learned Special Judge recorded
that the documents so recorded were returned as the
accused did not want to rely on them. Argument of
the learned counsel appearing for the appellant is
that relevant document is the cash book for
31.1.1994 and 1.2.1994 and as it is not produced,
CRA 1/02 18
opportunity was denied. Crl.M.P.No.588/2001 does
not show that appellant sought summons to be issued
for production of the cash book for 31.1.1994 or
1.2.1994. Instead, the prayer was to produce the
cash book for the year 1994-95. 1994-95 would
ordinarily mean the financial year 1.3.1994 to
28.2.1995. It was produced by the Panchayat, as
seen from the records. If appellant wanted the cash
book of 31.1.1994, the prayer should have been for
the specific cash book. I find that after
production of the records as prayed for in Crl.M.P.
No.588/2001, appellant filed Crl.M.P.No.734/2001 on
3.12.2001. On a perusal of Crl.M.P.No.734/2001, it
is seen that it was filed after perusing the
records produced by the Panchayat as directed in
Crl.M.P.No.588/2001 and finding that additional
document sought for in the petition was necessary.
If appellant wanted the cash book of 31.1.1994 and
it was not produced pursuant to the summons issued
in Crl.M.P.No.588/2001, he should have sought for
CRA 1/02 19
its production in Crl.M.P.No.734/2001. He did not
do so. I find that appellant thereafter filed
Crl.M.P.No.752/2001 for examination of two
witnesses, the Director of Panchayats and one
Sulaiman Haji, subsequently, when the case was
posted for arguments after closing the evidence,
filing Crl.M.P.No.751/2001, seeking to exercise the
power under Section 311 of Code of Criminal
Procedure. The prayer was to examine the two
witnesses to prove the two documents produced
therein. Learned counsel appearing for the
appellant argued that learned Special Judge did not
permit the appellant to examine those witnesses.
Crl.M.P.No.751/2001 shows that learned Special
Judge did not permit examination of those witnesses
for the reason that prayer for their examination
was to mark Exhibits D1 and D2, which were marked
by the learned Special Judge. In such
circumstances, I do not find that appellant was not
granted opportunity to adduce evidence, including
CRA 1/02 20
production of the records, especially when
appellant has no specific case, even when he was
questioned under Section 313 of Code of Criminal
Procedure, that receipt of the amounts covered by
Exhibits P4 to P15 was entered in the cash book. I
find no reason to remand the case as sought for by
the learned counsel appearing for the appellant to
adduce evidence. As found by the learned Special
Judge, while dismissing the application for
adjournment, more than 1= months was granted to the
appellant to adduce evidence and he did not adduce
any evidence. In such circumstances, I find no
justification for a remand.
17. Evidence would conclusively establish that
appellant received Rs.52,576/- from Koovappally
Service Co-operative Bank, evidenced by Exhibits P4
to P15 vouchers. Evidence also establish that
appellant did not account the said amount in any of
the registers or records of the Grama Panchayat. In
such circumstances, finding of the learned Special
CRA 1/02 21
Judge that appellant misappropriated Rs.52,576/-,
received under Exhibits P4 to P15 vouchers, is
perfectly legal and correct.
18. Evidence establish that appellant, in his
capacity as Special Grade Executive Officer of
Parathode Grama Panchayat, received Rs.52,576/- and
dishonestly omitted to show the amount in the
Receipt Register of the Panchayat or in any other
records and thereby falsified the account. He
dishonestly misappropriated Rs.52,576/- and thereby
committed criminal breach of trust. In such
circumstances, on the evidence, conviction of the
appellant for the offences under Sections 13(1)(c)
and 13(1)(d) read with Section 13(2) of Prevention
of Corruption Act is perfectly legal and correct.
19. Though learned counsel appearing for the
appellant argued that under Exhibit P1 no sanction
was granted to prosecute the appellant for the
offence under Section 477A of Indian Penal Code and
therefore, conviction of the appellant for the said
CRA 1/02 22
offence is illegal, Exhibit P1 order of sanction
establishes that sanction was granted not only to
prosecute the appellant for the offences under
Sections 13(1)(c) and 13(1)(d) read with Section 13
(2) of Prevention of Corruption Act and Section 409
of Indian Penal Code, but also under any other
sections or provisions of law, which implies that
there is sanction for prosecuting the appellant for
the offence under Section 477A of Indian Penal Code
also. As the evidence conclusively establish that
appellant falsified the account and also
misappropriated Rs.52,576/-, which was under his
domine as entrusted to him and he has committed
criminal breach of trust, conviction of the
appellant for the offences under Sections 409 and
477A of Indian Penal Code is also perfectly legal
and correct.
20. Then the only question is regarding the
sentence. Learned Special Judge awarded a
substantive sentence of rigorous imprisonment for
CRA 1/02 23
four years for the offences under Section 13(1)(c)
read with Section 13(2) of Prevention of Corruption
Act and Section 409 of Indian Penal Code. In
addition, fine of Rs.75,000/- and in default,
simple imprisonment for 1= years was awarded for
the offence under Section 13(1)(c) read with
Section 13(2) of Prevention of Corruption Act. He
was also sentenced to rigorous imprisonment for two
years for the offence under Section 477A of Indian
Penal Code. Learned Special Judge directed that
substantive sentences shall run concurrently.
Appellant had retired from service subsequently.
Considering the entire facts and circumstances of
the case, interest of justice will be met if the
substantive sentence for the offences under Section
13(1)(c) read with Section 13(2) of Prevention of
Corruption Act and Section 409 of Indian Penal Code
is reduced to rigorous imprisonment for two years,
maintaining the substantive sentence of two years
for the offence under Section 477A of Indian Penal
CRA 1/02 24
Code. I find no reason to interfere with the fine
of Rs.75,000/- awarded for the offence under
Section 13(1)(c) read with Section 13(2) of
Prevention of Corruption Act in addition to the
substantive sentence. But, the default sentence is
modified to simple imprisonment for six months.
Appeal is allowed in part. Conviction of the
appellant for the offences under Sections 13(1)(c)
and 13(1)(d) read with Section 13(2) of Prevention
of Corruption Act and Sections 409 and 477A of
Indian Penal Code is confirmed. The sentence is
modified as follows:
Appellant is sentenced to rigorous imprisonment
for two years and a fine of Rs.75,000/- for the
offence under Section 13(1)(c) read with Section 13
(2) of Prevention of Corruption Act and rigorous
imprisonment for two years each for the offences
under Sections 409 and 477A of Indian Penal Code.
As learned Special Judge has not awarded separate
sentence for the offence under Section 13(1)(d)
CRA 1/02 25
read with Section 13(2) of Prevention of Corruption
Act, no separate sentence is awarded for the said
offence. Substantive sentences shall run
concurrently. Appellant is entitled to get set off
under Section 428 of Code of Criminal Procedure as
provided by the learned Special Judge Special Judge
(Vigilance), Thrissur is directed to execute the
sentence.
4th January, 2011 (M.Sasidharan Nambiar, Judge)
tkv
CRA 1/02 26
M.Sasidharan Nambiar, J.
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Crl.A.No.1 of 2002
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JUDGMENT
4th January, 2011