IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 123 of 2002(A)
1. T.M.GOPALAN S/O.CHAPPA KURUP,
... Petitioner
Vs
1. STATE OF KERAL,REPRESENTED BY
... Respondent
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/01/2011
O R D E R
M.SASIDHARAN NAMBIAR,J.
---------------------------------------------
Crl.A.NO.123 OF 2002
---------------------------------------------
Dated 21st January, 2011
JUDGMENT
Appellant was Village Officer,
Muppainad village during 1985. He was the
first accused in C.C.2/1996 on the file of
Special Judge, Vigilance, Kozhikode. Second
accused was the hearing clerk of Land
Tribunal, Kalpetta from February, 1982 to
May 1982. Appellant was convicted and
sentenced for the offences under Section 5
(1)(d) read with Section 5(2) of Prevention
of Corruption Act, 1947 and Sections 420
and 167 of Indian Penal Code. Appeal is
filed challenging the conviction and
sentence.
2. Prosecution case in short was
that while working as Village Officer, he
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conspired with the second accused to obtain
bogus purchase certificates in respect of
vested forest land and pursuant to the
conspiracy got filed O.A.Nos.7/1982 and 9/1982
respectively in favour of PWs.12 and 13 and
O.A.Nos.8/1982 and 11/1982 respectively in
favour of Pws.17 and 16 and issued false
reports to the effect that they are cultivating
tenants, though it is part of the vested
forest and cannot be legally assigned to them.
Appellant having succeeded in getting purchase
certificates in favour of Pws.12, 13, his
relatives got power of attorney executed by
them in his favour and with the dishonest
intention, applied for agricultural loans in
the name of Pws.12 and 13 from Kainatty branch
of State Bank of India and obtained Rs.4,000/-
on 13/10/1982, Rs.2,600/- on 30/9/1983,
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Rs.2,500/- on 3/2/1984 through account
No.12/347 in the name of PW13 and Rs.10,180/-
on 13/10/1982, Rs.5,300/- on 30/9/1983 and
Rs.4,205/- on 3/2/1984 in Account No.12/346 in
the name of PW12 by making use of the bogus
purchase certificates. It is alleged that
appellant obtained the loans in the name of
Pws.12 and 13 respectively for Rs.27,000/- and
Rs.20,000/- respectively in the names of PW12
and PW13 on the strength of power of attorney
executed by Pws.12 and 13 in his favour and
misappropriated the amount, by withdrawing
the amount from the loan allowed in their
favour. It is alleged that similarly, second
accused on the basis of the power of attorney
executed by Pws.16 and 17, availed a loan of
Rs.10,180/- on 12/10/1982, Rs.5,300/- on
30/8/1983 and Rs.1,000/- on 21/7/1984 through
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account No.12/343 in the name of PW17 and
Rs.4,000/- on 30/10/1982 and Rs.2,600/- on
17/11/1982 through account No.12 maintained in
the name of PW16 in State Bank of India in
account No.12/345 and appellant thereby
cheated the bank to the tune of Rs.28,785/-
and second accused cheated Rs.23,080/-. When
the loans were not repaid, revenue recovery
proceedings were initiated. When revenue
recovery proceedings were initiated, appellant
as Village Officer prepared plans of the
properties with false details and thereby
committed the offences.
3. Learned Special Judge took
cognizance of the offences under Section 5(1)
(d) read with Section 5(2) of Prevention of
Corruption Act and Sections 420, 167 and 120 B
of Indian Penal Code. Both the accused pleaded
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not guilty. Prosecution examined 27 witnesses
and marked 53 exhibits. After closing the
evidence of the prosecution, accused were
questioned under Section 313 of Code of
Criminal Procedure. They were called upon to
adduce evidence. Appellant then examined DW1
and marked Exts.D1 and D2. Learned Special
Judge on the evidence found that entire
property in survey number 1226 of Muppainad
village is a vested forest and the properties
assigned in O.A.7/1982, 8/1982, 9/1982 and
11/1982 in favour of Pws.12,13, 16 and 17 are
part of the vested forest and suppressing that
fact appellant submitted false reports before
the Land Tribunal and got the properties
assigned in favour of Pws.12, 13, 16 and 17 and
appellant got executed power of attorneys in
his favour by Pws.12 and 13 and filed
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applications for agricultural loan before
Kainatty branch of State Bank of India and
availed loans by mortgaging the properties
obtained under the purchase certificates and
misappropriated the amount and thereby
committed all the offences charged. Appellant
was convicted and sentenced to rigorous
imprisonment for three years and fine of
Rs.50,000/- and in default rigorous
imprisonment for one year, for the offence
under Section 5(1)(d) read with Section 5(2) of
Prevention of Corruption Act, 1947. Appellant
was also convicted and sentenced to rigorous
imprisonment for two years and one year each
for the offences under Sections 420 and 167 of
Indian Penal Code. All the substantive
sentences were directed to run concurrently.
The second accused was acquitted finding that
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there is no evidence to prove the conspiracy
alleged against him or the offences alleged
against the second accused. First accused filed
the appeal challenging his 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 learned
Special Judge proceeded on the basis that
properties obtained by Pws.12, 13, 16 and 17
as per the orders of the Land Tribunal in
O.A.7/1982, O.A.8/1982, O.A.9/1982 and
O.A.11/1982 are vested forest, though there is
no evidence in support of the said findings. It
was argued that along with the statement filed
when questioned under Section 313 of Code of
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Criminal Procedure, appellant produced a
letter, copy of which was produced again in the
appeal along with Crl.M.A.455/2011 whereunder,
the Secretary, Land Board addressed the
District Collector, Wayanad to report whether
an extent of 741 acres in survey No.1226 of
Muppainad village was a vested forest, as it
was reported by the Deputy Collector
(General), Wayanand by letter dated 19/12/1988
that out of 3980.73 acres in survey No.1226,
only an extent of 741 acres is vested forest.
It is argued that as Ext.P21 plan was not
proved and was not relied on by the learned
Specail Judge, there is no legal evidence to
prove that the properties claimed by Pws.12,
13, 16 and 17 are portions of vested forest and
therefore, the prosecution case is not
sustainable.
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6. Learned counsel also argued that
evidence of the officials of the Forest
department are insufficient to prove that it
was the properties involved in O.As.7/1982,
8/1982, 9/1982 and 11/1982 are part of vested
forest and instead, the evidence show that the
properties do not fall within the vested forest
and in such circumstances, the conviction is
not sustainable. Learned counsel also argued
that material evidence was suppressed from
the Court and evidence of PW9 shows that he was
asked to enquire and report whether the
purchase certificates were obtained from the
Land Tribunal, after obtaining NOC from the
Forest department and before the properties
were assigned by the Land Tribunal whether the
properties were in their possession and though
it was deposed that the report shall be filed
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within fifteen days, no such report was
submitted. It was argued that the report was
not produced because if the report was produced
it would disprove the prosecution case and it
would have established that only 741 acres of
land in survey No.1226 of Muppainad village is
vested forest and the properties obtained by
Pws.12,13, 16 and 17 are not part of vested
forest. Learned counsel also argued that
when on almost identical set of facts, second
accused was acquitted, on the same evidence,
conviction of the appellant is not sustainable.
Learned counsel finally argued that on a proper
appreciation of evidence, it is to be found
that appellant did not commit any of the
offences.
7. Learned Public Prosecutor submitted
that evidence conclusively establish that
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property got assigned from the Land Tribunal
by Pws.12,13, 16 and 17 are part of vested
forest. It was argued that property was
identified in the presence of the appellant
with reference to the records and it is clear
that the properties were part of vested forest
and in such circumstances, the conviction is
perfectly legal. Learned Public Prosecutor
also pointed out that evidence establish that
bogus proceedings were initiated before the
Land Tribunal and purchase certificates were
obtained in the name of Pws.12 and 13 his
relatives and appellant got power of attorney
executed in his favour by Pws.12 and 13 and
thereafter availed agricultural loans from
State Bank of India in the name of Pws.12 and
13 and for getting the loans from the bank
appellant forged plans and submitted them and
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produced the bogus certificates. It was pointed
out that subsequently when the loan was not
repaid for realisation of the amount, revenue
recovery proceedings were initiated and in that
proceedings also appellant submitted false
reports. It was argued that on the evidence
conviction for the offence under Section 5(2)
read with Section 5(1)(d) of Prevention of
Corruption Act is perfectly legal. Learned
Public Prosecutor also pointed out that
evidence establish that with the dishonest
intention to cheat, after getting power of
attorneys executed in his favour, appellant
approached State Bank of India and availed
loans for agricultural purpose and did not pay
the same and to avail that loans bogus
purchase certificates were produced and in such
circumstances, offence under Sections 420 and
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167 of Indian Penal Code were committed and
there is no reason to interfere with the
conviction or the sentence.
8. Following points arise for consideration.
1) Whether the properties covered by
O.A.7/1982, 8/1982, 9/1982 and 11/1982 are
parts of the vested forest?
2) Whether appellant submitted false
reports to the Land Tribunal to obtain purchase
certificates in the name of PWs.12, 13, 16 and
17?
3) Whether the appellant, with the
dishonest intention applied for agricultural
loans from Kainatty Branch of State Bank of
India in the name of Pws.12 and 13 on the
strength of their power of attorney and by
inducement made the bank part with money,
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which was received by the appellant and
misappropriated it and thereby committed the
offences as alleged?
4) Whether the sentences awarded is
reasonable?
9. The points:
Fact that appellant was Village officer
of Muppainad village during 1984 is not
disputed. Second accused was the hearing clerk
of Land Tribunal, Kalpetta. One Savithri
claiming to be landlady filed four applications
under Section 72BB of Kerala Land Reforms Act
for payment of compensation due to her alleging
that PWs.12, 13, 16 and 17 are the cultivating
tenants in respect of the property in survey
No.1226 having an extent of five acres each.
Land Tribunal initiated O.A.7/1982 and 9/1982
in respect of the property allegedly in the
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possession of Pws.12, 13 and O.A.8/1982 and
11/1982 in respect of the properties allegedly
in the possession of Pws.17, and 16. Exts.P16
and P18 are the files relating to O.A.7/1982
and 9/1982 maintained by Land Tribunal.
Exts.P17 and P19 are the files of O.A.8/1982
and 11/1982 maintained by the Land Tribunal.
Reports were called for by the Special
Tahsildar, Land Tribunal, from the appellant as
he was the concerned Village Officer. Exts.P16
(a) and P18(a) are the respective
communications sent by Tahsildar to the
appellant in respect of O.A.7/1982 and 9/1982
calling for the reports. Exts.P16(b) and P18(b)
are the reports respectively submitted by the
appellant to the Tahsildar as sought for under
Ext.P16(a) and P18(a) to the effect that
properties were in their possession before
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1964. Based on the reports, Tahsidar as per
separate orders dated 18/3/1982, assigned the
jenm right in respect of 5 acres each in
survey No.1226 part of Muppainad village in
favour of Pws.12 and 13. Similarly based on
Ext.P17(a) and P19(a) requisitions, appellant
as the Village Officer submitted Exts.P17(b),
P19(b) reports to the Land Tribunal in
O.A.8/1982 and O.A.11/1982 and based on those
reports Tahsildar passed separate orders dated
18/3/1982 assigning jenm right in respect of 5
acres of land in survey No.1226. Ext.P16 to
Ext.P19 files reveal that the applications were
filed in C form by the landlady in February
1982. The respective communications calling for
the reports of the appellant was sent by
Tahsildar on 10/3/1982. Appellant as the
Village officer furnished the positive reports,
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in all the cases on 16/3/1982. Immediately on
18/3/1982 all the O.As were allowed and jenm
rights were assigned to Pws.12,13, 16 and 17.
In the reports appellant has certified that
Pws.12, 13, 16 and 17 have been in possession
of the property earlier to 1964 and they have
been cultivating Thiruva grass earlier and
later cardamom is being cultivated. Pws.12 and
13 are direct brothers. Wife of the appellant
is the niece of Pws.12 and 13. It is in their
favour, Exts.P16(b) and P18(b) reports were
submitted by the appellant. Learned Public
Prosecutor argued that on the evidence it is
proved that the reports are falsely filed and
Pws.12 and 13 were never cultivating tenants.
Argument of the learned counsel appearing for
the appellant is that the said findings of the
trial court is based on the erroneous
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assumption of the learned Special Judge that
entire extent in survey No.1226 is vested
forest land. It is argued that the said finding
was based on Ext.P22 notification and Ext.P22
notification will not establish that entire
extent in survey No.1226 is a vested forest.
Learned counsel also pointed out that along
with the statement filed by the appellant
before the Special Judge, as part of the
questioning under Section 313 of Code of
Criminal Procedure, appellant had produced a
copy of the letter addressed by the Secretary
of Land Board to District Collector, Wayanad
and the said letter reveals that out of 3980.73
acres comprised in survey No.1226 of Muppainad
village, only an extent of 741 acres is
vested forest and there are 250 occupants
in that land. A report was called for
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from the District Collector to consider whether
the said 741 acres alone is vested forest. A
copy of that document was produced in the
appeal and I.A.455/2011 is filed to receive it
as additional evidence. Being a document
produced before the trial court along with the
written statement filed as part of his answers
to the questions put to him under Section 313
of Code of Criminal Procedure the document is
not to be received as additional evidence.
I.A.455/2011 is therefore, dismissed. It is
also argued that though Ext.P21 plan was
produced and PW22 was examined, the surveyor
who prepared the plan was not examined and
learned Special Judge did not accept Ext.P21
did not rely on that plan and there is no
evidence to prove that the whole extent in
survey No.1226 is vested forest. Argument is
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that if that be so and only 741 acres in survey
No.1226 is vested forest, unless prosecution
establishes that the property covered by
Exts.P16 to P19 O.As are portions of the said
vested forest, finding of the learned Special
Judge that report filed by the appellant is
false, cannot be accepted. Learned counsel
also argued that evidence of the Forest
officials, when examined establish that near to
the disputed properties there are other persons
in possession of similar properties and in such
circumstances, it cannot be found that the
reports are false.
10. True, Ext.P22 notification will not
establish that the whole extent in survey
No.1226 as found by the learned Special Judge
was vested forest. Ext.P22 notification was
issued by custodian of vested forest, in
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exercise of the powers under Kerala Private
Forests (Vesting and Assignment) Act, 1971 and
published in the Gazette dated 25/1/1977
showing the location of vested forest in
Kozhikode district. Wayanad was at that time
part of Kozhikode district as Wayanad district
was formed carving out parts from the districts
of Kozhikode and Kannur only later. Ext.P22
shows that vested forest in Muppainad village
are the following viz.(1) Survey No.1169
portion– Malayalam Plantation 185 acres,
(2)Survey No.1186, 1187, 1208, 1215 and 1226
together portion-Nilambur Kovilakom.
Approximate extent 2200 hectres. Boundaries of
this item are shown as south Calicut Taluk,
east survey no.1214 and Ernad Taluk and west
survey No.1187 portion and Calicut taluk and
north survey numbers 1185, 1186 part, 1180
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part, 1219 part, 1208 part, 1225 part, 1213
part and 1214 part. Learned Special Judge found
that Rule 2A of Kerala Private Forests
(Vesting and Assignment) Rules, 1974 specifies
how demarcation of private forests are to be
effected and notification is to be published in
the Village office also and Ext.P22
notification was issued in exercise of the
powers under Kerala Private Forest (Vesting
and Assignment) Act, 1971 and it shows
S.No.1226 is a vested forest. It was held that
therefore, the whole extent in survey N0.1226
of Muppainad village is vested forest. Letter
dated 15/7/1989 by the Secretary of Land Board
to the District Collector establish that total
extent in survey no.1226 of Muppainad
village is 3980.73 acres. Together with that
extent, the total extent in survey nos.1186,
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1187, 1208, 1215 and 1226 admittedly exceeds
much more than 2200 hectres, which alone is
shown as the vested forest in Ext.P22
notification. If that be so, only portion of
those items are the notified vested forests.
Therefore, finding of the learned Special Judge
that the whole extent in survey no.1226 of
Muppainad village is vested forest cannot be
correct. But that does not mean that Ext.P16
(b), 17(b),P18(b) and P19(b) reports submitted
by the appellant in favour of Pws.12,17, 13 and
16 are not false reports.
11. Exts.P23 and P24 are the respective
files maintained by State Bank of India
Kainatty branch in respect of the agricultural
loans granted in the name of Pws.12 and 13.
PW19 was the Manager of that branch when the
loan was sanctioned. Ext.P23 establishes that
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though a loan of Rs.27,000/- was sanctioned in
the name of PW12, even the loan application was
filed by the appellant, as the power of
attorney holder of PW12 and not by PW12. That
application is dated 2/7/1982. Ext.P23(a) is
the power of attorney executed by PW12 in
favour of the appellant. It was executed only
on 6/10/1982. It is thus clear that application
for the loan as the power of attorney holder of
PW12 was submitted by the appellant even before
the power of attorney was executed in his
favour by PW12. Ext.P23(a) shows that the power
of attorney was executed by PW12 empowering
appellant, who allegedly has been in
possession of the property obtained by him as
per the order in O.A.7/1982 and purchase
certificate 123/1982 to be in possession of the
property and also to avail any loan from State
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Bank of India, Kainatty branch and empowering
the appellant deal with the same. Similarly,
Ext.P24 file relating to the loan sanctioned
in the name of PW13 shows that the application
for loan in the name of PW.13 was also
submitted before the bank by the appellant as
his power of attorney on 2/7/1982. As is the
case with the power of attorney executed by
PW12, Ext.P24(a) power of attorney was executed
by PW13 only much later on 6/10/1982. It is
thus clear that when appellant approached the
bank and submitted application for agricultural
loan in the name of PW13, he was not having
any power of attorney, which was executed in
his favour only subsequently. The fact that
appellant submitted those applications for loan
as power of attorney holder of Pws.12 and 13
and loan of Rs.27,000/- and Rs.20,000/-
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respectively in favour of Pws.12 and 13 were
sanctioned and part of the loans so sanctioned
were received by the appellant and utilized by
him personally, are not only not disputed but
admitted when he was questioned under Section
313 of Code of Criminal Procedure. True, case
of the appellant is that he utilized the money
for agricultural operation in the properties,
though he claims that the cultivation so made
were damaged. Evidence of Pws.12 and 13 prove
that they were unaware of the loan or the
liability due to climatic variations. It is
also admitted by the appellant that for non
payment of the loan amount, bank initiated
proceedings against Pws.12 and 13, for
realisation of the loan granted in favour of
PW12 and PW13. Ext.P38 is the file relating to
realisation of loan granted in the name of
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PW13. Exts.P37 and 38 files establish that
revenue recovery proceedings were initiated for
realisation of the amounts respectively due
from PW12 and PW13. Ext.P37 file shows that
including interest revenue recovery proceedings
were initiated for realisation of Rs.26,048.70
due from PW12. The file shows that demand
notice under Section 7 was issued by Tahsildar,
which is seen served by the endorsement of the
appellant as Village officer, on 10/3/1986.
Ext.P37(g) is the report of the appellant. The
report is to the effect that notice was served
on PW12. He is not a resident of that village
and he is not having any movable property and
he is in possession of 5 acres in survey
No.1226 and though it was cultivated with
cardamom and coffee, there is no income from
the property. Report also reveals that along
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with the report Ext.P37(a) sketch of the
property and Ext.P37(b) Adangal extract are
enclosed. Ext.P37(a) sketch shows that the
property was identified by the appellant as a
property which lies to north of river, west of
the property of PW17 (against him also revenue
recovery proceedings were initiated under
Ext.P39 file), to the south of D.stone and to
the east of the property of PW13 (against whom
also revenue recovery proceedings are
initiated). The file also discloses that
subsequently Ext.P37(f) plan was prepared by
PW22 Village Assistant, whereunder the said
property is identified. As per that sketch, the
property of PW12 lies to the north of the
property of Bhaskaran, west of the property of
PW16, to the south thodu and to the east of the
property of PW12. Evidence of PW22 establishes
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that when Ext.P37(f) plan was prepared,
appellant was present and the property was
identified by him and the plan was prepared as
per that identification. When appellant was
questioned on this evidence under Section 313
of Code of Criminal Procedure he did not deny
those facts. It is thus clear that when
Ext.P37(a) sketch was prepared and submitted by
the appellant to the Tahsildar stating that
said property is in the possession of PW12,
property so identified by him entirely
different from the property which was
subsequently identified and shown in Ext.P37(f)
plan as pointed out by the appellant.
12. So also Ext.P38 file shows that on
getting a certificate from the District
Collector based on the requisition submitted by
the Manager of Kainatty branch of State Bank
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of India for realisation of Rs.11,900/- from
PW13 demand notice was issued under Section 7
of Revenue Recovery Act and sent it to the
appellant for service. Ext.P38(f) is the report
submitted by the appellant. The report is dated
10/3/1986. Report shows that notice was served
on PW13 on 4/3/1986. Appellant reported that
PW13 is not a resident of that village and he
is not having any movable property in that
village and he is in possession of 5 acres of
land and though it was cultivated with grass,
the cultivation was damaged and at present
there is no income and the property could be
attached and for that purpose Ext.P38(b) sketch
and Ext.P38(a) Adangal extract are enclosed.
Ext.P38(b) sketch prepared by the appellant
shows that property of PW13 is marked as a
property which lies to the north of river to
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the west of the property of PW12 to the south
of D stone and to the east of river. Ext.P38(c)
is the mahazar prepared by the appellant
showing the boundaries of the property as shown
in the plan. When the property was directed to
be attached, it is seen that attachment notice
was not served on PW13 and instead a report was
filed by the appellant stating that as PW13 is
not a resident in that property order of
attachment could not be served on him and there
is no building in the property and hence notice
was affixed on the tree and the present address
of PW13 is not known. Ext.P38 plan was prepared
by PW22, as is the case with Ext.P37(f) plan.
As per that plan the property lies to the
north of the property of Bhaskaran to the west
of the property of PW12, to the south of Thodu
and to the east of road. It is to be born in
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mind that even according to the appellant, it
is admitted even in his written statement,
Pws.12 and 13 were not residing in Wayanad,
their properties were in possession of the
appellant. As stated earlier power of attornies
were executed by Pws.12 and 13 in favour of the
appellant enabling him to be in possession of
the property and to obtain loan from the bank.
It is the case of the appellant himself that
he availed loans and cultivated the properties.
The property sought to be proceeded under
revenue recovery proceedings in Ext.P37 file
relates to the property covered by O.A.7/1982
and property sought to be proceeded against
under Ext.P38 file, relates to the property
covered by O.A.9/1982. When it is the specific
case of the appellant that he has been in
possession of the properties and cultivating
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the same on behalf of PWs.12 and 13, he cannot
be allowed to contend that he was not aware
of the identity of the properties or its
boundaries. If that be so and Pws.12 and 13
were cultivating tenants and after obtaining
jenm right from the Land Tribunal on behalf
of the appellant, appellant was cultivating the
properties after obtaining loans by mortgaging
the properties in favour of the bank, appellant
should necessarily know the identity and other
details of the properties covered by O.A.7/1982
and O.A.9/1982. It is more so when the
properties were assigned by the Land Tribunal
in favour of Pws.12 and 13 based on his report
that they have been in possession of the
properties even before 1964. As rightly
found by the learned Special Judge PW12 was
employed as Head Master and was working in
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Mahe.
13. Ext.P16 file and copy of purchase
certificate show that property assigned in
favour of PW.12 is 5 acres of land which lies
to east of property of PW13 and to the west of
property of Thankappan and to the south and
north of remaining properties in that survey
number. If in fact the property claimed by PW12
was lying to the south of a thodu or to the
west of the property of PW16 or to north of the
property of Bhaskaran as found at the time of
preparing Ext.P37(f) plan, appellant would not
have shown the property claimed by PW12 in the
O.A as one which lies to the north of the river
and east of the property of PW17 or to the
south of D.stone. Even the property as
identified in Ext.P38(f) is not identical to
the property shown in the purchase certificate.
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Similarly, purchase certificate in Ext.P18 file
shows that property assigned in favour of PW13
based on the report submitted by the appellant
is 5 acres in survey no.1226 part, which lies
to the east of the property of PW16, to the
west of the property of PW1 and to north and
south of remaining properties in that survey
number. If this is the property which has been
in the alleged possession of PW13, which
continued to be in possession of the appellant
as his power of attorney holder, he would not
have shown that property in Ext.P38(b) sketch
as the property which lies to the north of
the river, to the west of property of PW12, to
the south of D stone and to the east of river.
If appellant was aware of the property covered
by O.A.9/1982, he would not have shown to
PW.22 the property as demarcated in Ext.P38(e)
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plan which lies to east of road, south of thodu
and north of the property of Bhaskaran. When
these materials are appreciated in the proper
perspective, it is absolutely clear that
appellant has no idea of the identity of the
properties covered by O.A.7/1982 or O.A.9/1982.
If that be so, no other material is necessary
to uphold the finding of the learned Special
Judge that the respective reports submitted by
the appellant in O.A.7/1982 and O.A.9/1982 are
false to the knowledge of the appellant. When
all the surrounding circumstance is also
appreciated, it is clear that the said O.A
proceedings were initiated and reports were
submitted at the instance of the appellant, so
that he can claim those properties on the
strength of the power of attornies executed by
Pws.12 and 13, his relatives and dishonestly
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37
induced the bank to grant loan based on the
certificates and thereby cheated the bank also.
That was exactly what happened in this case.
Immediately after getting purchase certificates
issued in favour of Pws.12 and 13, even before
getting any power of attorney executed by
Pws.12 or 13, appellant approached the bank by
filing applications for loan in their names
claiming that he is their power of attorney
holder and induced the bank to believe that
Pws.12 and 13 are in possession of the
properties and grant loans, admittedly availed
by the appellant himself and utilized by him.
In such circumstances, I have absolutely no
hesitation to hold that appellant has misused
his position as Village Officer to submit
false reports so that purchase certificates
could be obtained in the name of his close
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38
relatives. He thereby obtained undue pecuniary
advantage for himself. Evidence also establish
that appellant dishonestly induced State Bank
of India, Kainatty branch to grant loan based
on the purchase certificates so obtained by
the appellant in the name of Pws.12 and 13 and
made the bank part with the money sanctioned
under agricultural loans and did not repay
the same.
14. In such circumstances, finding of
the learned Special Judge that appellant
committed the offences under Section 5(1)(d)
read with Section 5(2) of Prevention of
Corruption Act, 1947 and Sections 420 and 167
of Indian Penal Code is perfectly legal and
correct. Fact that second accused was acquitted
and conspiracy was found against him, does not
affect the conviction of the appellant. Even
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39
in the absence of conspiracy to prove that the
loan obtained by the second accused based on
the purchase certificate issued, in O.A.8/1982
and 11/1982 in favour of Pws.16 and 17, it is
clear that the reports in respect of Pws.16
and 17 in O.A.8/1982 and 11/1982 are also
falsely submitted by the appellant, as is clear
from the properties shown in the sketches in
Ext.P39 and Ext.P40 files and the subsequent
plan prepared by PW22 in the presence of the
appellant which are contradictory to each other
and do not tally with the property claimed in
O.A.8/1982 and 11/1982. In such circumstances,
the fact that second accused was acquitted does
not make any difference in the conviction of
the appellant, as evidence conclusively
establish the ingredients of the offences under
Section 5(1)(d) read with Section 5(2) of
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40
Prevention of Corruption Act, 1947 and Sections
420 and 167 of Indian Penal Code.
15. Then the question is regarding the
sentence. Learned Special Judge sentenced the
appellant to rigorous imprisonment for three
years and a fine of Rs.50,000/- and in default
rigorous imprisonment for one year for the
offence under Section 5(1)(d) read with
Section 5(2) of Prevention of Corruption Act
and rigorous imprisonment for two years and
one year respectively for the offences under
Sections 420 and 167 of Indian Penal Code.
Substantive sentences were directed to run
concurrently. Learned counsel appearing for
the appellant submitted that considering the
age of the appellant and the fact that
appellant was dismissed from service, sentence
may be reduced.
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41
16. Considering the gravity of the
offence and position of the appellant as
Village Officer, the custodian of the
properties of the government, the offences
cannot be lightly viewed. In such
circumstances, the substantive sentence awarded
by learned Special Judge for the offences
under Section 5(1)(d) read with Section 5(2) of
Prevention of Corruption Act, 1947 does not
warrant any interference. So also fine of
Rs.50,000/- awarded for the offence under
Section 5(1)(d) read with Section 5(2) of
Prevention of Corruption Act. But the default
sentence is reduced to simple imprisonment for
six months. As the learned Special Judge has
directed that substantive sentences shall run
concurrently, no interference is warranted on
the sentences awarded for the offence under
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42
Sections 420 and 167 of Indian Penal Code.
In the result, appeal is dismissed
confirming the conviction and sentence. But
the default sentence for the offence under
Section 5(1)(d) read with Section 5(2) of
Prevention of Corruption Act is reduced to
simple imprisonment for six months, instead
of rigorous imprisonment for one year.
Substantive sentences shall run concurrently.
Special Judge, Kozhikode is directed to
execute the sentence.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.