IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 294 of 2002()
1. M.SIVARAMAN S/O.CHEYIKUTTY,
... Petitioner
Vs
1. DEPUTY SUPERINTENDENT OF POLICE,
... Respondent
2. STATE-REPRESENTED BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/01/2011
O R D E R
M.Sasidharan Nambiar, J.
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Crl.A.No.294 of 2002
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JUDGMENT
Appellant, the second accused in C.C.No.9/1999, 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 by Special Judge
(Vigilance), Kozhikode. Prosecution case is that first
accused was the Lay Secretary and Treasurer of Institute of
Maternal and Child Health, Kozhikode. Appellant was the
Peon therein. The treasury bills of the establishment were
being presented to the Treasury and get them encashed by
the first accused authorising appellant. It is the prosecution
case that during the period 3.2.1992 to 25.2.1992,
Rs.68,774/- covered by Exhibit P20 series of bills which
were encashed from the Treasury, by presenting the bills
along with Exhibit P2 Treasury Bill Book were not
accounted and both the accused misappropriated the
CRA 294/02 2
amount and thereby committed the offences. As authorised
by the first accused, appellant presented Exhibits P20(d) to
P20(h) bills on 25.2.1992 and got the bills passed and did
not entrust the amount to the first accused. Appellant did
not attend the office from 26.2.1992 onwards. First accused
submitted Exhibit P1(a) report to PW1, Superintendent of
Institute of Maternal and Child Health, Kozhikode informing
the non receipt of the amount covered by the Treasury Bills
and the absence of the appellant PW1, in turn, intimated the
police under Exhibit P37(a). Based on the information Crime
No.59/1992 was registered under Exhibit P37 FIR of
Medical College Police Station. As the offences alleged
include offence under Prevention of Corruption Act, the
case was transferred to Vigilance and Anti Corruption
Bureau, Kozhikode. PW23, Superintendent of Police,
Vigilance and Anti Corruption Bureau, re-registered the
case so received as Vigilance Crime No.2/1993 under
Exhibit P44 FIR. PW22, Deputy Superintendent of Police,
investigated the case. PW24 continued the investigation and
CRA 294/02 3
laid the charge on getting Exhibit P38 order sanctioning the
prosecution. Learned Special Judge took cognizance of the
offences under Section 13(1) read with Section 13(2) and
Sections 409 and 109 of the Indian Penal Code. On the
appearance of the accused learned Special Judge framed
charge 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 against both the accused and for
the offence under Section 109 of Indian Penal Code also
against the first accused. Both the accused pleaded not
guilty.
2. Prosecution examined 24 witnesses and marked
Exthibits P1 to P44. After closing the prosecution evidence,
accused were questioned under Section 313 of Code of
Criminal Procedure and were called upon to adduce
evidence, if any. Appellant examined DW1. Learned
Special Judge, on the evidence, found the first accused not
guilty of the offences and acquitted him. Finding that
Exhibits P20 (a) to P20(h) bills were presented before the
CRA 294/02 4
Treasury, as authorised by the first accused, by the
appellant and the bills were encashed by him and holding
that appellant did not entrust the amount back to the first
accused and he misappropriated Rs.68,774/-, appellant was
found guilty of the offences. He was convicted and
sentenced to rigorous imprisonment for two years and a fine
of Rs.67,481/- and in default, simple imprisonment for two
years for the offence under Section 13(2) read with section
13(1)(c) of Prevention of Corruption Act and rigorous
imprisonment for two years for the offence under Section
409 of Indian Penal Code. The substantive sentences were
directed to run concurrently. He was granted set off as
provided under Section 428 of Code of Criminal Procedure.
This appeal is filed challenging the conviction and sentence.
3. Learned counsel appearing for the appellant and
learned Public Prosecutor were heard.
4. Argument of the learned counsel appearing for the
appellant is that learned Special Judge did not properly
appreciate the evidence and should have found that first
CRA 294/02 5
accused, being the Drawing and Disbursement Officer, who
is responsible to keep custody of Exhibit P2 Treasury Bill
Book and to present it, along with the bills for encashment
was primarily responsible for the amount encashed through
the appellant. It was argued that Exhibit P2 Treasury Bill
Book establishes that appellant had encashed the bills as
authorised by the first accused and entrusted the money to
the first accused but first accused was not in the habit of
properly accounting the amount so received. It was pointed
out that Exhibit P2 Treasury Bill Book shows that on
18.2.1992, 21.2.1992 and 25.2.1992 several bills were
entrusted by the first accused to the appellant, to present
them before the Treasury and first accused admitted receipt
of money so encashed under many of those bills, though he
is disputing entrustment of the money covered by Exhibits
P20(a) to P20(h) bills. Learned counsel pointed out that
when Exhibit P26, the personal register maintained by the
first accused, establishes that some of the bills encashed on
25.2.1992 were entrusted to the first accused by the
CRA 294/02 6
appellant, he cannot be heard to contend that the remaining
amounts covered by the bills were not entrusted to him and
as appellant had to take leave on compelling reasons on
26.2.1992 and could not attend the office on the next two or
three days a complaint was lodged to escape from the
liability, as first accused was aware that audit will be
conducted on 27.2.1992 and that audit would reveal the
misappropriation. It was argued that when appellant is
responsible for receipt of the amount covered by Exhibits
P20(a) to P20(h) bills, when first accused admitted that
appellant entrusted the remaining undisputed bills, which
were entrusted to the appellant by the first accused on
18.2.1992, 21.2.1992 and 25.2.1992, learned Special Judge
should not have accepted the case of the first accused or
the prosecution that appellant did not entrust the amount
covered by Exhibits P20(a) to P20(h) bills to the first
accused and for the sole reason that appellant did not
attend the office on 26.2.1992 and the subsequent days,
appellant could not be convicted. Learned counsel pointed
CRA 294/02 7
out that appellant was convicted finding that he did not
attend the office on 26.2.1992 onwards and Exhibit P2
Treasury Bill Book was not returned by the appellant to the
first accused but there is no evidence to prove that Exhibit
P2 Treasury Bill Book was returned to the appellant on
25.2.1992. It was argued that evidence would establish that
when bills are objected to by the Treasury Officer, there is a
practice of retaining the Treasury Bill Book in the Treasury
and Exhibit P2 shows that two bills were objected on audit
reasons and in such circumstances, explanation of the
appellant that Exhibit P2 Treasury Bill Book was not
returned to the first accused on 25.2.1992 should have been
accepted, especially when, it is the prosecution case that
subsequently Exhibit P2 Treasury Bill Book was produced
before the Deputy Superintendent on 15.9.1992, by PW1,
the Treasury Officer.
5. Learned Public Prosecutor argued that it is not
disputed that Exhibits P20(a) to P20(h) bills were entrusted
by the first accused to the appellant authorising him to
CRA 294/02 8
present them before the Treasury and to get them
encashed and appellant admittedly encashed them and
there is no evidence to prove that the amount so received
by the appellant under Exhibits P20(a) to P20(h) bills were
entrusted to the first accused or to the office by the
appellant and therefore, the conviction is perfectly legal.
6. The following points arise for consideration:
1. Whether appellant misappropriated Rs.68,774/-
received under Exhibits P20(a) to P20(h) bills?
2. Whether appellant committed the offence under
Section 13(1)(c) read with Section 13(2) of
Prevention of Corruption Act and Section 409 of
Indian Penal Code and if so, whether the sentence
awarded is reasonable?
The Points:
7. The fact that appellant, the second accused, was
Peon of Institute of Maternal and Child Health, Kozhikode
and he was being authorised by the first accused Lay
Secretary as the Disbursing Officer, to present the bills
before the Treasury and to receive the amount on behalf of
CRA 294/02 9
the first accused are not disputed. It is proved by Exhibit
P2 Treasury Bill Book also. It is also in evidence that even
though, as per the Rules, first accused is to authorise a
Clerk to present the bill and receive the amount if it
exceeds Rs.10,000/-, first accused was sending the
appellant even if the bill exceeds Rs.10,000/- is also not
disputed. Prosecution case is that first accused authorised
appellant to present Exhibit P20 series of bills and they
were presented before the Treasury by the appellant and he
received the amounts and first accused, along with the
appellant, misappropriated the amount by not showing
receipt of the amount in the account of the Institute of
Maternal and Child Health. Learned Special Judge, on the
evidence, found the first accused not guilty of the offences
and acquitted him holding that there is no evidence to prove
that first accused, in any way, assisted or aided appellant in
the misappropriation, even though there are circumstances
indicating laches on his part in the financial transactions of
the establishment through the Treasury. Learned Special
CRA 294/02 10
Judge found that as appellant admitted that he received
Rs.68,774/-, evidenced by Exhibits P20(a) to P20(h) bills and
there is no evidence to prove that he entrusted the amount
to the first accused and as appellant did not attend the
offence from 26.2.1992 onwards and did not take Exhibit P2
Treasury Bill Book from the Treasury, appellant is guilty of
the offences. As rightly pointed out by the learned counsel
appearing for the appellant, learned Special Judge did not
appreciate the evidence properly.
8. Exhibit P2, the Treasury Bill Book, contains the
instructions to be followed by the Disbursing Officers.
9. Under Instruction No.6, Drawing Officer is
personally responsible for the entries in Column Nos.1 to 6
and 12 to 13 and for any omission to make appropriate
entries in these columns in respect of any bill. Similarly, the
Treasury officer shall be responsible for entries in Columns
7 to 11 and for the omission to make any entry in these
columns in respect of any bill presented/ encashed at the
Treasury. Column 14 may be filled up and attested by the
CRA 294/02 11
Drawing Officer or the Treasury Officer, as the case may be,
according to the nature of the entry made therein.
Instruction No.7 is most relevant. It reads:
“Columns 12 and 13 shall be completed by the
Drawing Officer on the same day of encashment of
the bill.”
10. Under Instruction No.8, when a bill is objected to
in the Treasury, the word ‘objected’ should be got written in
column 10 by the Treasury or the Sub Treasury Officer with
dated signature in column 11. When such bills are
presented again after clearing the objections, bills should
be entered afresh in the Bill Book. Instruction No.9 reads:
“Drawing Officer shall take note of the fact if
columns 1 to 6 and 12 to 13 are not filled up by
him, the bills presented subsequently at the
Treasury will not be honoured for payment.”
Instruction No.10 reads:
“It is the primary responsibility of the Drawing
Officer to get back the Treasury Bill Book from
the concerned Treasury immediately after the billsCRA 294/02 12
presented are cashed or objected and to keep the
book safely. Used Treasury Bill Books should be
preserved as a permanent record.”
Therefore, under Instruction No.7, Drawing Officer is
expected to complete columns 12 and 13 on the same day of
encashment of the bill. Column 12 relates to the date of
entry in the cash book and column 13 signature of the
Drawing Officer in charge of the cash. Therefore, it is clear
that when a bill, along with the Treasury Bill Book, is
presented before the Treasury for encashment either by the
Disbursing Officer personally or as authorised by him by
some other subordinate officer, as and when the bill is
encashed or objected to, the Treasury Bill Book shall be
received back by the drawing Officer and on the date of
encashment of the bill itself, columns 12 and 13 are to be
filled up. If column 12 is to be filled up on the same day, it is
mandatory that receipt of the amount covered by the bill
should be entered in the cash book on the same day and
then only, the date of entry in the cash book could be
CRA 294/02 13
entered in column 12 and Disbursing Officer could affix
his/her signature in column 13.
11. Exhibit P2 Treasury Bill Book conclusively establish
that Exhibit P20(a) bill was presented before the Treasury.
It is seen entered as Sl.No. 209 in Page No.33 of Exhibit P2.
The relevant entry was separately marked as Exhibit P2(a).
It is for Rs.1,293/-. The bill shows that after it was prepared,
first accused signed in it on 29.1.1992 and it was passed by
the Treasury as Bill No.3372 on 29.1.1992. It shows that the
amount thereunder was received by the appellant on
3.2.1992. As per Instruction No.7, first accused should have
shown receipt of that amount in the cash book on the same
day and should have filled up columns 12 and 13 also on the
same day. Exhibit P2 Treasury Bill Book shows that first
accused filled up columns 12 and 13 on 30.1.1992, but did
not fill up columns 12 and 13 in Exhibit P2(a) entry. At the
same time, Exhibit P2 shows that in Page No.34, the bills
encashed subsequently on 1.2.1992 were received by the
first accused and columns 12 and 13 were filled up on
CRA 294/02 14
3.2.1992. Exhibit P2 shows that even thereafter first
accused was sending bills for presentation before the
Treasury through the appellant. Though Exhibit P2 shows
that various bills were encashed, columns 12 and 13 were
not filled up in many of the pages of Exhibit P2 Treasury Bill
Book, in violation of the mandatory instructions provided
under Instruction No.7 of Exhibit P2 Treasury Bill Book.
Learned Special Judge unfortunately held that though
instructions are mandatory to the Drawing Officer and if the
bills are not presented following the instructions, they need
not be honoured by the Treasury, it does not prohibit the
Treasury officer from receiving the bills or passing the bills.
I cannot agree with the said finding. When instructions in
the Treasury Bill Book mandate that as when bills presented
before the Treasury are encashed or objected to, the Bill
Book should be received back by the Disbursing Officer
from the Treasury and columns 12 and 13 should be filled
up on the same day and before presenting the next bill,
columns 12 and 13 should be filled up. The Treasury Officer
CRA 294/02 15
should not have passed the bill when columns 12 and 13 are
not filled up regarding the bills which were passed
previously. Whatever it be, when presentation or
encashment of Exhibit P20 bill, evidenced by Exhibit P2(a)
entry is not the subject matter of the charge, it is not very
relevant to be considered in this appeal.
12. Exhibit P20(a) bill is for Rs.4,034/-. It shows that
the bill relates to arrears of pay consequent to the pay
fixation of several employees, including PW4, the Nursing
Assistant. Exhibit P2 Treasury Bill Book shows that it was
prepared as Bill No.444/91-92 and was entered in Exhibit
P2 as Sl.No.254 and was presented before the Treasury
through the appellant, along with Exhibit P2 bill book. The
relevant entry shows that first accused signed in column 6
on 17.2.1992 and the bill was passed on 18.2.1992. Though
learned Special Judge, on the evidence, found that there is
no evidence to prove that appellant, who admittedly
encashed the amount, did not pay the amount covered by
Exhibit P20(a) bill to the first accused, Exhibit P2 bill book
CRA 294/02 16
shows that several other bills were also presented before
the Treasury by the appellant on the same day and were
encashed. Sl.No.251 is a bill for reimbursement for
Rs.3,350/- and it was presented on 17.2.1992 and was
passed on 18.2.1992. As Sl.No. 250, bill for Rs.15,120/-,
being the GPF advance, was presented through appellant on
17.2.1992 and was passed on 17.2.1992. As Sl.No.249, GPF
advance bill for Rs.10,250/- was presented before the
Treasury through the appellant and was encashed on
17.2.1992. Similarly, bills shown as Sl.Nos.252, 253, 254,
255, 256, 257, 258, 259 and 260 were also presented on
17.2.1992 respectively for Rs.534/-, Rs.995/-, Rs.4,034/-
Rs.665/-, Rs.23,120/-, Rs.7,280/-, Rs.2,428/-, Rs.2,630/- and
Rs.792/-. Columns 12 and 13 are seen filled up. Therefore,
Exhibit P2 itself establishes that even though bills were
presented before the Treasury through appellant and were
encashed, the bill book was not properly maintained.
Exhibit P26 was produced as the personal register
maintained by the first accused. It is claimed that in Exhibit
CRA 294/02 17
P26 register, first accused used to enter the amounts
received by him as entrusted by the appellant after bills
were encashed from the Treasury. Case is that if the
amounts covered by Exhibits P20(a) to P20(h) bills were
encashed and those amounts were entrusted to the first
accused by the appellant, it would have been entered in
Exhibit P26 register. Argument is that as Exhibit P26
register does not contain the entries for receipt of the
amounts covered by Exhibits P20(a) to P20(h) bills, it is to
be accepted that amounts were not entrusted by the
appellant. If Exhibit P26 was being properly maintained and
the amounts covered by the disputed bills are not seen in
the said register, it could be said that appellant did not
entrust the amount. But, when Exhibit P26 is a personal
register maintained by the first accused and appellant has
no opportunity to go through the register and when no
endorsement of the appellant is being obtained in Exhibit
P26 register, if first accused committed omissions in
preparing Exhibit P26, based on the omissions in Exhibit
CRA 294/02 18
P26, it cannot be said that appellant did not entrust the
amounts received by him, on encashing the bills, to the first
accused. When Exhibit P2 Treasury Bill Book establishes
that several bills were presented before the Treasury on the
same day and when subsequent bills are presented before
the Treasury by the Disbursing Officer and he is expected to
fill up columns 12 and 13 before presenting the subsequent
bills, first accused should have necessarily gone through
Exhibit P2 Treasury Bill Book regarding the details of the
previous bills. If first accused had gone through the relevant
entries about the previous bills in Exhibit P2 before
presenting the subsequent bills, he must be aware of the
fact that previous bills were encashed. If that be so, defence
of the first accused cannot be believed that he was unaware
of encashment of the previous bills and therefore, he did not
find out the omissions or misappropriation, if any,
committed by the second accused. As stated earlier, when
Exhibit P20(a) bill is seen passed by the Treasury on
18.2.1992 as Sl.No.254 of Exhibit P2, first accused
CRA 294/02 19
admittedly presented the subsequent bills on 21.2.1992
through the appellant, evidenced by Exhibit P2 Treasury Bill
Book. It cannot be believed that first accused was unaware
of encashment of Exhibit P20(a) bill on 18.2.1992. Exhibit
P26 register also shows that first accused had shown
receipt of several bills, including GPF advance Bill 83 and
Treasury Bills 440, 446, 447, 448 and 449. It is also to be
borne in mind that Exhibit P20(a) bill includes arrears of
salary to be paid to PW4. In such circumstances, it cannot
be believed that the staff will be unaware of encashment of
the bills.
13. Exhibit P20(b) bill for Rs.14,237/- was seen
prepared on 21.2.1992. It relates to surrender of earned
leave of various staff of Institute of Maternal and Child
Health. It is seen presented as Bill No.450/91-92 and passed
by the Treasury as Bill No.1786 on 21.2.1992. Similarly,
Exhibit P20(c) bill was seen prepared on 19.2.1992 for
Rs.21,740/- and was presented as Bill No.85/91-92 and
passed by the Treasury on 21.2.1992 as Bill No.1785. These
CRA 294/02 20
two bills are seen encashed by Token Nos.1237 and 686 by
the appellant as per the endorsements made on 21.2.1992.
Exhibit P2 Treasury Bill Book also shows that they were
passed and encashed. The relevant entry in columns 12 and
13 are not seen filled up, either in respect of the said bills or
the bills presented and encashed along with those bills, on
the same day. Even though Exhibit P2 Treasury Bill Book
was presented along with subsequent bills on 25.2.1992, it
shows that on 21.2.1992, apart from Exhibits P20(b) and
P20(c) bills, Bill No.86/91-92 for Rs.27,683/- and Bill Nos.
451, 452, 453, 454 and 455 were also presented before the
Treasury on the same day respectively for Rs.5,502/-,
Rs.59/-, 1,474/-, Rs.838/- and Rs.98/- and they were all
encahsed on the same day. Exhibit P26 register shows that
on 27.2.1992, the amounts encahsed under GPF bills 82/91-
92, 436, 405, 404, 455, 459 and 452 are entered. But
receipt of the amounts covered by Exhibits P20(b) and P20
(c) bills are not seen entered. When Exhibit P2 Treasury Bill
Book was definitely sent by the first accused on 25.2.1992,
CRA 294/02 21
at the time of presenting the subsequent bills before the
Treasury after filling up columns 6 and 7, it can only be
found that first accused had seen the relevant entries with
respect to Exhibits P20(b) and P20(c) bills at least on
25.2.1992, when he had filled up columns 6 and 7 and
presented the subsequent bills by authorising the very same
appellant to encash them on his behalf. Exhibits P20(d) to
P20(h) are Bill Nos.453, 460, 462, 464 and 465 respectively
for Rs.1,474/-, Rs.15,035/-, Rs.9,981/-, Rs.490/- and Rs.490/-.
The respective bills show that they were prepared on
25.2.1992 and first accused authorised appellant to present
those bills and encash the same. Bills were presented by the
appellant before the Treasury on 25.2.1992. Exhibit P2 also
shows that apart from Exhibit P20(d) to P20(h) bills, GPF
Bill 84 for Rs.23,120/-, Bill 463 for Rs.6,280/-, Bill 451 for
Rs.5,502/- Bill 461 for Rs.5,917/- and Bill 456 for Rs.1,192/-
were also presented and encashed on the same day. Exhibit
P26 register maintained by the first accused shows that he
entered receipt of Rs.23,120/-, received by the appellant
CRA 294/02 22
under Bill No.84/91-92, Rs.6,280/-, received under Bill No.
463, Rs.5,502/-, received under Bill No.451, Rs.5,917/-,
received under Bill No.461 and Rs.1,192/-, received under
Bill No.456. It is, therefore, absolutely clear that out of the
several bills presented by the first accused through the
appellant on 25.2.1992, appellant had entrusted at least the
amounts shown in Exhibit P26 register to the first accused.
Though appellants claims that he entrusted the entire
amount covered by Exhibits P20(d) to P20(h) bills to the
first accused, it was denied by the first accused. Question is
whether, on the evidence, it can be found that appellant did
not entrust the amounts to the first accused and thereby
misappropriated the amount or appellant, in conspiracy
with the first accused, misappropriated the said amount as
aided by the first accused.
14. Findings of the learned Special Judge are that
there is no conclusive evidence to prove conspiracy between
the first accused and the appellant or that first accused
abetted the appellant to misappropriate the amount or
CRA 294/02 23
allowed the appellant to misappropriate the amount with his
knowledge. It is on that ground first accused was acquitted.
Entire case is to be appreciated in this background.
15. When the Treasury Rules and the Instructions in
Exhibit P2 Treasury Bill Book mandate that when a bill is to
be presented before the Treasury, along with the Treasury
Bill Book, the Disbursing Officer shall fill up columns 12 and
13 in the Treasury Bill Book, regarding encashment of the
previous bills passed by the Treasury and he shall show the
date of encashment of the bill in the cash book. When
subsequent bill is to be prepared and presented before the
Treasury, first accused, as the Disbursing Officer, shall,
necessarily, verify whether the previous bills presented
through appellant were encashed and if encashed, he
should, necessarily, show receipt of the amount in the cash
book and thereafter fill up columns 12 and 13 of Exhibit P2
Treasury Bill Book. Hence, it cannot be believed that first
accused was unaware of encashment of the previous bills
when Exhibits P20(b) and P20(c) bills were presented
CRA 294/02 24
subsequently on 21.2.1992. If that be so, if there was no
conspiracy as found by the learned Special Judge, first
accused would not have entrusted Exhibits P20(b) and P20
(c) bills to the appellant again, when he did not account for
Exhibit P20(a) bill. Similarly, when the amounts received
under Exhibits P20(b) and P20(c) bills, which were
encashed on 21.2.1992, were not entrusted to the first
accused, when Exhibits P20(d) to P20(h) bills were
presented on 25.2.1992, first accused would never entrust
those bills again to the appellant, with the knowledge that
the amounts received under Exhibits P20(a) to P20(c) bills,
which were encashed by the appellant, were not entrusted
to him. As stated earlier, if Exhibit P2 Treasury Bill Book
was verified by the first accused, as he should have,
mandatorily, he should not have entrusted Exhibits P20(d)
to P20(h) bills to the appellant again. Therefore, I have
absolutely no hesitation to hold that without the knowledge
or consent of the first accused, appellant could not have
independently misappropriated the amounts covered under
CRA 294/02 25
Exhibits P20(a) to P20(h) bills, as found by the learned
Special Judge.
16. The crucial question is whether there is evidence to
prove that appellant misappropriated the amounts covered
under Exhibits P20(a) to P20(h) bills after encashing the
same from the Treasury and receiving from the Bank,
without entrusting the same to the first accused. As stated
earlier, on the evidence, it cannot be believed that first
accused did not entrust the amount covered by Exhibits P20
(b) and P20(c) bills on 21.2.1992, when first accused was
well aware that Exhibit P20(a) bill for Rs.4,034/- was
encashed by the appellant on 18.2.1992. It is clear that first
accused had received the amount covered by Exhibit P20(a)
bill before 21.2.1992, as otherwise, he would not have
entrusted Exhibits P20(b) and P20(c) bills to the appellant,
authorising him to encash them. It is the similar case with
Exhibits P20(d) to P20(h) bills. When Exhibit P2 Treasury
Bill Book establishes that Exhibits P20(a) to P20(c) bills
were already encashed by the appellant, if appellant had
CRA 294/02 26
not entrusted the amount to the first accused, it is
absolutely clear that he would not have authorised
appellant to present the subsequent bills and encash the
same on 25.2.1992. On the evidence, it is not possible to
hold that appellant did not entrust the amounts covered by
Exhibits P20(a) to P20(h) bills to the first accused,
especially when, admittedly, other bills authorised in favour
of the appellant and encashed by him were entrusted to the
first accused.
17. Evidence of PW1, Superintendent of Institute of
Maternal and Child Health, Kozhikode is to the effect that
first accused informed him on the morning of 26.2.1992 that
appellant, to whom several bills were entrusted for
presentation before the Treasury, did not return back from
the Treasury and did not entrust the bill book or the
amounts covered by the bills. According to PW1, he wanted
to verify whether appellant is available at his house and
advised first accused to wait till the evening. Evidence of
PW4, the Nursing Assistant, is to the effect that appellant
CRA 294/02 27
attended the office on the morning of 26.2.1992 and
informing that a close relative is hospitalised he left the
office. PW9, the then Deputy District Medical officer, had
conducted an enquiry on the allegation against the first
accused and the appellant and submitted Exhibit P27
report along with the statements recorded. Exhibit P27
report includes the signed written statement submitted by
the first accused in the disciplinary proceedings. The said
statement shows that on 18.2.1992, appellant entrusted him
Rs.36,963/-, stating that it is the amount received by
encashing eight bills and on 21.2.1992, appellant entrusted
Rs.36,047/-, stating that it is the amount received by
encashing eight bills and on 25.2.1992, appellant entrusted
Rs.42,011/-, stating that it is the amount received by
encashing five bills. The statement further discloses that the
said amounts, received by the first accused, were shown in
the Cash Book, UDP Register and were disbursed through
the acquittance roll. Though first accused claimed that he
was not aware of encashment of the other bills, statement
CRA 294/02 28
discloses that seven tokens entrusted to the appellant, on
presentation of the bills, were found in the bag which was
being taken by the appellant to the Treasury, along with the
bills, which was found in the office itself and subsequently,
those tokens were surrendered to the Treasury. Statement
further discloses that on 26.2.1992 morning, when first
accused reached the office, Clerk Kumaran and PW4, the
Nursing Assistant, informed first accused that appellant had
attended the office in the morning and informed that his
brother is ill and has to go to Parappanangadi and left the
office. When first accused enquired whether he had given
any leave letter, it was disclosed that he did not furnish any
leave letter and therefore, appellant did not make any
further enquiry. Further case in the statement is that when
appellant failed to attend the office on 27.2.1992, first
accused was under the impression that appellant did not
attend the office as his brother’s illness aggravated. When,
on 28.2.1992 also, appellant did not attend the office, first
accused authorised Lift Operator K.J.Joseph to obtain the
CRA 294/02 29
Treasury Bill Book from the Treasury, who in turn, informed
first accused that Bill Book is not available in the Treasury
and it was taken by the appellant. When this information
was given to the first accused over phone, first accused
asked Joseph to go to the quarters of the appellant and get
the Treasury Bill Book. Joseph, on enquiry, informed first
accused that appellant is not in the quarters and he could
not find the Treasury Bill Book in the quarters. The said
statement of the first accused shows that evidence of PW1
that first accused approached PW1 and informed him on the
morning of 26.2.1992 that appellant did not come back from
the Treasury and did not entrust he amounts by encashing
the bills is not correct. Instead, even according to the first
accused, appellant had returned from the Treasury and
entrusted Rs.42,011/- on 25.2.1992 itself.
18. Exhibit P26 personal register corroborates the
statement of the first accused seen in Exhibit P27 report
that at least Rs.42,011/- was entrusted by the appellant to
the first accused, being the amount received by him by
CRA 294/02 30
encashing five bills presented before the Treasury on
25.2.1992. If that be so, it is clear that if Exhibits P20(d) to
P20(h) bills were presented on 25.2.1992 along with other
bills and passed by the Treasury and encashed by the
appellant, on behalf of the first accused, appellant had
returned back to the office and entrusted the amount
received by him. There is no evidence to prove that
appellant did not entrust the money received by him on
encashing all the bills passed on that day. For the reason
that first accused did not show the amounts covered under
Exhibits P20(d) to P20(h) bills in Exhibit P26 register, it
cannot be believed that appellant did not entrust the
amounts received by encashing Exhibits P20(d) to P20(h)
bills to the first accused. It is pertinent to note that even
when first accused was questioned under Section 313 of
Code of Criminal Procedure, he has not given any
explanation as to why he omitted to take action against the
appellant when the amount covered by Exhibit P20(a) was
not accounted for, when Exhibits P20(b) and P20(c) bills
CRA 294/02 31
were entrusted to the appellant on 21.2.1992 or when
Exhibits P20((b) and P20(c) bills were not accounted, when
Exhibits P20(d) to P20(h) bills were entrusted to the
appellant for encashment on 25.2.1992. In view of these
intrinsic evidence, it can only be found that there cannot be
a misappropriation of the amounts, covered by Exhibits P20
(a) to P20(h) bills, independently by the appellant. If at all
there was misappropriation, it can only be by the first
accused and with the connivance of the appellant. There is
absolutely no possibility for the appellant to misappropriate
the amounts covered by Exhibits P20(a) to P20(h) bills
without the junction of the first accused. When learned
Special Judge already found that there was no conspiracy
and first accused has not misappropriated the amount
either independently or jointly with the appellant and the
State has not challenged the said findings by filing an
appeal against the order of acquittal of first accused,
appellant cannot be convicted holding that he
misappropriated the amount jointly with the first accused.
CRA 294/02 32
As the evidence do not establish that appellant did not
entrust the amount received by him by encashing Exhibits
P20(a) to P20(h) bills, it cannot be found that appellant
misappropriated Rs.68,774/-, covered by these bills. Hence,
conviction of the appellant for the offences under Sections 7
and 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act and Section 409 of Indian Penal Code can
only be set aside.
Appeal is allowed. Conviction and sentence passed by
Special Judge (Vigilance), Kozhikode in C.C.No.9/1999
against the appellant is set aside. Appellant is found not
guilty of the offences charged. He is acquitted. Bail bond
executed by the appellant stands cancelled.
10th January, 2011 (M.Sasidharan Nambiar, Judge)
tkv
CRA 294/02 33
M.Sasidharan Nambiar, J.
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Crl.A.No.294 of 2002
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JUDGMENT
10th January, 2011