{"id":109936,"date":"2009-12-16T00:00:00","date_gmt":"2009-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-abdul-wahab-vs-kerala-financial-corporation-on-16-december-2009"},"modified":"2016-10-16T17:01:24","modified_gmt":"2016-10-16T11:31:24","slug":"m-abdul-wahab-vs-kerala-financial-corporation-on-16-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-abdul-wahab-vs-kerala-financial-corporation-on-16-december-2009","title":{"rendered":"M.Abdul Wahab vs Kerala Financial Corporation on 16 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.Abdul Wahab vs Kerala Financial Corporation on 16 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 764 of 1994()\n\n\n\n1. M.ABDUL WAHAB\n                      ...  Petitioner\n\n                        Vs\n\n1. KERALA FINANCIAL CORPORATION\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.KRISHNA MANI\n\n                For Respondent  :SRI.M.PATHROSE MATTHAI (SR.)\n\nThe Hon'ble MR. Justice K.M.JOSEPH\nThe Hon'ble MR. Justice M.L.JOSEPH FRANCIS\n\n Dated :16\/12\/2009\n\n O R D E R\n            K. M. JOSEPH & JOSEPH FRANCIS JJ.,\n\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                          A. S. NO: 764 OF 1994\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n\n             Dated this the 16th Day of December, 2009.\n\n\n                                 JUDGMENT\n<\/pre>\n
Joseph Francis J.,<\/p>\n
      This appeal is filed by the first defendant in O.S. 74 of 1985 on<\/p>\n
the file of Sub Court Alleppey. The first respondent herein is the<\/p>\n
plaintiff and the second respondent is the second defendant in that suit,<\/p>\n
which was filed on realisation of misappropriated amount.<\/p>\n
      2. The facts of the case are briefly as follows:\n<\/p>\n
      Plaintiff is a Corporation established under the State Financial<\/p>\n
Corporation Act with its Head Office at Trivandrum and Branch offices<\/p>\n
at other places, including Alleppey. Smt. M. Syamala Devi, Deputy<\/p>\n
Manager (legal) who has signed and verified this plaint was competent<\/p>\n
to sue and recover all amounts due to the plaintiff. Defendants 1 and 2<\/p>\n
were employed under the plaintiff at its Alleppey Branch. The 2nd<\/p>\n
A.S . NO: 764 OF 1994
\n                                     :2:<\/span><\/p>\n
defendant was the Branch Manager and 1st defendant was the Assistant<\/p>\n
under the 2nd defendant during the period from 6.2.1981 to 27.8.1983.<\/p>\n
The 1st defendant was the Assistant in charge of cash and all other<\/p>\n
monies received in the Branch Office at Alleppey and he was to receive<\/p>\n
the cash and other remittances from the customers and to issue receipts,<\/p>\n
signed by the 2nd defendant – Branch Manager. He was the custodian of<\/p>\n
the cash and other remittances in the Canara Bank, Alleppey either on<\/p>\n
the date of receipt itself or on the next working day. It was also the<\/p>\n
duty of the 1st defendant to keep the necessary accounts and registers<\/p>\n
properly. The 2nd defendant, as Manager, was to sign the receipts for<\/p>\n
the cash and other remittances received at the Branch Office, after<\/p>\n
satisfying about the remittances; to check the accounts and registers,<\/p>\n
and to see that the amounts received are duly and promptly remitted to<\/p>\n
the Bank. Both the defendants were jointly and severally liable to<\/p>\n
account to the plaintiff for all the monies received at the Branch office<\/p>\n
at Alleppey. During the period from 6.2.1981 to 27.8.1983, several<\/p>\n
amounts were received in the Branch Office from time to time from the<\/p>\n
plaintiff’s customers, on account of the various loan accounts were not<\/p>\n
A.S . NO: 764 OF 1994
\n                                   :3:<\/span><\/p>\n
promptly remitted into the Bank account of the plaintiff. There are<\/p>\n
cases of delayed remittances, short remittances, and non-remittances.<\/p>\n
After retaining the cash received from several days, without remitting<\/p>\n
them in the Bank, random remittances were also made.            By this<\/p>\n
process, huge amounts were misappropriated by the 1st defendant, and<\/p>\n
or by the defendants jointly by colluding with each other. Both the<\/p>\n
defendants are jointly and severally liable for the amounts<\/p>\n
misappropriated, by their unauthorised and irregular actions, in<\/p>\n
violation of the rules and regulations. Even in case the entire amounts<\/p>\n
were misappropriated by the 1st defendant, himself, the 2nd defendant<\/p>\n
was equally liable to the plaintiff, along with the 1st defendant, since<\/p>\n
the misappropriation were possible only because of the negligence and<\/p>\n
dereliction of duty by the 2nd defendant. From out of the amounts<\/p>\n
received at the Alleppey Branch, during the period from 30.12.81 to<\/p>\n
5.3.83, as per the receipts and the cash book, an amount of<\/p>\n
Rs.83,338.85 received was not remitted in the Bank. But an amount of<\/p>\n
Rs.23,393\/- has been remitted in the Bank at random. It can be seen<\/p>\n
that an amount of Rs.59,945.85 which has been received, was not<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :4:<\/span><\/p>\n
remitted in the Bank during the said period. The 1st defendant, or the<\/p>\n
defendants jointly have fraudulently and dishonestly misappropriated<\/p>\n
the said amount, and have committed fraud. The plaintiff corporation<\/p>\n
is a financial institution, giving loans for industrial purposes and the<\/p>\n
normal rate of interest charged is 15.5% p.a., with half yearly rests on<\/p>\n
the 1st of January and July every year. The plaintiff has been deprived<\/p>\n
of the use of the misappropriated amount for lending purposes, and<\/p>\n
hence the plaintiff is entitled to reliase the amount with interest at the<\/p>\n
rate of 15.5% pa. with half yearly rests.          The irregularities and<\/p>\n
misappropriation came to the notice of the plaintiff only 26.5.1983<\/p>\n
when certain receipt irregularities were then reported to the Head<\/p>\n
Office. A thorough check of the accounts was made by the offices sent<\/p>\n
from Head Office for the purpose, and they have found that the total<\/p>\n
amounts of misappropriation is Rs.59,945.85 and later the 1st defendant<\/p>\n
was dismissed from the service of the plaintiff. While under<\/p>\n
suspension, the 1st defendant filed a voluntarily signed statement before<\/p>\n
the Financial Controller of the plaintiff on 11.11.83, stating that he has<\/p>\n
the sole responsibility for the missing of credits and he is ready to remit<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :5:<\/span><\/p>\n
the missing amounts to the plaintiff corporation in instalments. The<\/p>\n
original records are with Vigilance Department and hence photocopy<\/p>\n
was produced along with the suit.        The 1st defendant later sent a<\/p>\n
demand draft dt.30.12.83 for Rs.1000\/- being credit as missing credits.<\/p>\n
No other amount has been paid by the defendants. The 2nd defendant is<\/p>\n
still under suspension. The failure of defendant to pay the said amount<\/p>\n
with interest is the cause of action for this suit. The plaintiff filed suit<\/p>\n
for the amounts detected. The plaintiff reserved the right to sue or take<\/p>\n
further action in respect of any other amounts of misappropriation, if<\/p>\n
detected.    The plaintiff prayed for a decree for realisation of<\/p>\n
Rs.94,415.47 with interest at the rate of 15.5% from the date of suit till<\/p>\n
date of realisation from the defendants and from their assets along with<\/p>\n
costs and just other equitable reliefs.\n<\/p>\n
       3. The first defendant filed a written statement contending that<\/p>\n
the suit is not maintainable under law. It is true that first defendant was<\/p>\n
working as Assistant in Alleppey branch and whenever cash was<\/p>\n
received by him on behalf of the branch it was remitted in the Canara<\/p>\n
Bank, Jetty Branch, Alleppey.          The first defendant prayed for<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :6:<\/span><\/p>\n
production of the original receipts books of the relevant period by the<\/p>\n
plaintiff. It is incorrect to say that he was the sole custodian of the<\/p>\n
cash. As per the instructions of the Branch Manager the first defendant<\/p>\n
had to perform other duties outside the office, such as clearing the bills<\/p>\n
etc., which can be seen from the tour program of the first defendant.<\/p>\n
First defendant also prayed for production of tour program for that<\/p>\n
period.    The balance sheet of plaintiff corporation was prepared<\/p>\n
annually and audited each year by competent chartered accountant. If<\/p>\n
there was any misappropriation it would have been detected at the time<\/p>\n
of audit. The first defendant was not responsible for non receipt of<\/p>\n
Rs.59,945.85 in the bank for the period from 30.12.81 to 5.3.83. He<\/p>\n
has not misappropriated the amount as alleged and the plaintiff was not<\/p>\n
entitled to get any amount. Details of remittance in the branch office,<\/p>\n
were submitted to the Head Quarters of plaintiff corporation and even<\/p>\n
though the vigilance department was investigating the matter for the<\/p>\n
last three years, they were not able to trace out such a misappropriation.<\/p>\n
The requisite enquiries to be conducted after furnishing of the charges<\/p>\n
to the 1st defendant has not been conducted before he was dismissed<\/p>\n
A.S . NO: 764 OF 1994
\n                                   :7:<\/span><\/p>\n
from service. The first defendant has not given voluntary statement on<\/p>\n
11.11.1983.     The another statement was obtained from the first<\/p>\n
defendant by the Financial Controller, at the Alleppey Branch by<\/p>\n
inducement, threat and promise. The first defendant was informed by<\/p>\n
the Financial Controller and the second defendant that in case he<\/p>\n
admits the sole responsibility for the missing amount and makes a<\/p>\n
token remittance, he will be absolved of all the responsibilities of the<\/p>\n
missing amount. The second defendant informed first defendant that if<\/p>\n
first defendant makes the token remittance second defendant will remit<\/p>\n
the remaining amount.        The suit was barred by limitation.     The<\/p>\n
averments are without disclosing source of the date of knowledge of<\/p>\n
the fraud. No prayer of the plaintiff was legally allowable. Therefore<\/p>\n
the first defendant prayed for dismissal of the suit.<\/p>\n
      4. The second defendant filed a written statement contending that<\/p>\n
the suit is not maintainable under law. The averments in the plaint that<\/p>\n
the receipts received by the first defendant were always signed by the<\/p>\n
second defendant is incorrect. The Junior Executive in charge of office<\/p>\n
superintendent or Assistant in charge of cash, depending on availability<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :8:<\/span><\/p>\n
used to sign in the receipts as second defendant would be engaged in<\/p>\n
field work.     The exclusive responsibility of receiving cash etc,<\/p>\n
bestowed only with the first defendant. The maintenance of cash books<\/p>\n
was prescribed only on 1.9.1983 vide circular No.Acts 241\/83 enabling<\/p>\n
the superior officer to verify the details of day to day cash transactions<\/p>\n
in the branch offices. He has not colluded with the first defendant.<\/p>\n
The second defendant has not committed any fraud. He was also not<\/p>\n
liable to pay any amount or interest. The second defendant prayed for<\/p>\n
dismissal of the suit.\n<\/p>\n
      5. In the sub court PW1 to PW3 and DW1 and DW2 were<\/p>\n
examined and Exts. A1 to 18, B1 and B2 and C1 to C12 were marked.<\/p>\n
The learned Sub Judge decreed the suit and the plaintiff was given a<\/p>\n
decree for realisation of Rs.94,415.47 with interest at the rate of 15.5%<\/p>\n
per annum from the date of suit till date of realisation from the<\/p>\n
defendants alongwith costs. Against that judgment and decree the first<\/p>\n
defendant filed this appeal. During the pendency of this appeal the 2nd<\/p>\n
respondent\/the 2nd defendant died and no legal heirs were impleaded<\/p>\n
and therefore the appeal against 2nd respondent was dismissed as<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :9:<\/span><\/p>\n
abated.\n<\/p>\n
      6. We heard the learned counsel for the appellant and learned<\/p>\n
counsel for the first respondent.\n<\/p>\n
      7. The learned counsel for the appellant submitted that the suit is<\/p>\n
one for realisation of money and as such the date on which the plaintiff<\/p>\n
came to know the alleged irregularity cannot be the basis for<\/p>\n
determining that question of the limitation. The learned counsel for the<\/p>\n
appellant further submitted that the alleged misappropriation is within<\/p>\n
the period commencing from 30.12.81 to 5.3.83 and the annual audit<\/p>\n
for the alleged period has not detected any misappropriation and<\/p>\n
therefore the court below went wrong in overlooking the same.<\/p>\n
Whereas the learned counsel for the first respondent supported the<\/p>\n
judgment.\n<\/p>\n
      8.   In the plaint Rs.59,945.85 is shown as the amount<\/p>\n
misappropriated and Rs.34,469.62 is claimed as interest at the rate of<\/p>\n
15.5% till 30.10.85, less Rs.1,000\/- remitted by the Demand Draft on<\/p>\n
4.1.84 and thus the plaintiff claims Rs.94,415.47.<\/p>\n
      9. In the plaint, it is alleged that the cause of action for the suit<\/p>\n
A.S . NO: 764 OF 1994
\n                                      :10:<\/span><\/p>\n
arose on 26.5.83 when the fraud and misconduct of defendants were<\/p>\n
initially known to the plaintiff. PW1 – the Deputy Manager (Legal)<\/p>\n
and the plaintiff corporation deposed that the fact of non-remittance by<\/p>\n
the first defendant was known only on 26.5.83. The first defendant is<\/p>\n
examined as DW1.           DW1 admits in cross-examination that the<\/p>\n
irregularity of non-remittance of the amount in the bank came to the<\/p>\n
knowledge of the plaintiff on 26.5.83 when the second defendant<\/p>\n
reported the matter. Therefore it is clear that the plaintiff came to know<\/p>\n
about the misappropriation only on 26.5.83. The plaintiff filed the suit<\/p>\n
on 31.10.85 within 3 years and as such the learned Sub Judge is<\/p>\n
justified in finding that the suit is not barred by limitation.<\/p>\n
       10. The testimony of DW1 shows that misappropriation came to<\/p>\n
the knowledge of the plaintiff on 26.5.83 when the second defendant<\/p>\n
reported the matter to the plaintiff. Therefore it is evident that inspite<\/p>\n
of annual audit, the irregularity was not detected at the proper time.<\/p>\n
DW1 admits that in Page No.24 of Annual Report for the year 1983-84<\/p>\n
of the plaintiff corporation which is marked as Ext.A16(a), it is stated<\/p>\n
that an amount of Rs.59,945.85 was not remitted in the bank and that<\/p>\n
A.S . NO: 764 OF 1994
\n                                    :11:<\/span><\/p>\n
statement is correct. DW1 deposes that he has no dispute about that<\/p>\n
figure but his dispute is whether the amount is collected by him or not.<\/p>\n
Ext.A10 is the written reply given by the first defendant before the<\/p>\n
Managing Director of the plaintiff corporation against the memo of<\/p>\n
charges and allegations against the first defendant. In Ext.A10, the first<\/p>\n
defendant admits that he had misappropriated the amount.            DW1<\/p>\n
admits that Ext.A10 is written in his own hand writing. Ext.A3 is the<\/p>\n
letter dated 31.12.83 written by the first defendant to the Managing<\/p>\n
Director of the Plaintiff corporation stating that he is sending a<\/p>\n
Demand draft for Rs.1,000\/- drawn in State Bank of Travancore in<\/p>\n
favour of plaintiff corporation and asking to credit the amount to the<\/p>\n
missing amount of Alleppey branch during his tenure as cashier.<\/p>\n
Ext.A14 is the statement dated 11.11.83 given by the first defendant<\/p>\n
before Financial Controller on account of missing remittance.           In<\/p>\n
Ext.A14 it is stated by first defendant that he has the sole responsibility<\/p>\n
and that he was in charge of the cash and he used to utilise the cash<\/p>\n
received at the office for personal purposes and that he is ready to remit<\/p>\n
the missing amount in instalments. As observed by the learned Sub<\/p>\n
A.S . NO: 764 OF 1994
\n                                   :12:<\/span><\/p>\n
Judge the burden is on the first defendant to prove that the admissions<\/p>\n
made by him in the above documents have been initiated by threat or<\/p>\n
promise. But the first defendant has not adduced any independent<\/p>\n
evidence to discharge his burden. In view of specific admission by first<\/p>\n
defendant in Ext.A10, A14 and A3 regarding the suit liability the<\/p>\n
learned Sub Judge is justified in decreeing the suit against the first<\/p>\n
defendant. It has come out in evidence that even where the entire<\/p>\n
amount was misappropriated by the first defendant himself, the second<\/p>\n
defendant is equally liable to the plaintiff along with the first defendant<\/p>\n
as the misappropriation was possible only because of the negligence<\/p>\n
and dereliction of duty of the second defendant. Therefore, the second<\/p>\n
defendant is jointly and severally liable for the suit amount along with<\/p>\n
the first defendant.    Since the liability does not arise out of a<\/p>\n
commercial transaction, interest of 15.5% awarded from the date of the<\/p>\n
suit has to be reduced to 6%.\n<\/p>\n
      Accordingly this appeal is allowed in part. The judgment and<\/p>\n
decree in O.S. No: 74 of 1985 on the file of Sub Court Alleppey is<\/p>\n
modified and the plaintiff is allowed to realise an amount of 94,415.47<\/p>\n
A.S . NO: 764 OF 1994
\n                                     :13:<\/span><\/p>\n
with interest at the rate of 6% per annum from the date of the suit till<\/p>\n
the date of realisation and cost from the defendants and their assets.<\/p>\n
Parties are directed to suffer their respective costs in this appeal.<\/p>\n
                                      K. M. JOSEPH JUDGE,<\/p>\n
                                M. L. JOSEPH FRANCIS, JUDGE.\n<\/p>\n
dl\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.Abdul Wahab vs Kerala Financial Corporation on 16 December, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 764 of 1994() 1. M.ABDUL WAHAB … Petitioner Vs 1. KERALA FINANCIAL CORPORATION … Respondent For Petitioner :SRI.B.KRISHNA MANI For Respondent :SRI.M.PATHROSE MATTHAI (SR.) The Hon’ble MR. Justice K.M.JOSEPH The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-109936","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.Abdul Wahab vs Kerala Financial Corporation on 16 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-abdul-wahab-vs-kerala-financial-corporation-on-16-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Abdul Wahab vs Kerala Financial Corporation on 16 December, 2009 - 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