High Court Kerala High Court

M.V.Mohammed Sheriff vs State Of Kerala on 14 March, 2008

Kerala High Court
M.V.Mohammed Sheriff vs State Of Kerala on 14 March, 2008
       

  

  

 
 
  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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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.

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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

Crl.A.Nos.882 & 883 OF 1999
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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.

– – – – – – – – – – – – – – – – – – – – – – –
Crl.A.Nos.882 & 883 OF 1999

– – – – – – – – – – – – – – – – – – – – – – –

JUDGMENT

Dated 14th Mar. 2008