{"id":21847,"date":"2008-07-10T00:00:00","date_gmt":"2008-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jose-mathew-vs-state-of-kerala-on-10-july-2008"},"modified":"2016-09-12T13:35:23","modified_gmt":"2016-09-12T08:05:23","slug":"jose-mathew-vs-state-of-kerala-on-10-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jose-mathew-vs-state-of-kerala-on-10-july-2008","title":{"rendered":"Jose Mathew vs State Of Kerala on 10 July, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Jose Mathew vs State Of Kerala on 10 July, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 816 of 2000()\n\n\n\n1. JOSE MATHEW\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.VIJAYA BHANU\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice A.K.BASHEER\n\n Dated :10\/07\/2008\n\n O R D E R\n                              A.K.BASHEER, J.\n             - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                           Crl.A.No.816 OF 2000\n             - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                 Dated this the 10th day of July 2008\n\n                                  JUDGMENT\n<\/pre>\n
     Appellant was tried before the Enquiry Commissioner and<\/p>\n
Special Judge, Thrissur for the offence punishable under Section<\/p>\n
5(1)(c) and (d) read with Section 5(2) of the Prevention of<\/p>\n
Corruption Act, 1947 and also under Sections 409 and 477 A IPC.<\/p>\n
The trial court found the appellant guilty of the charges levelled<\/p>\n
against him and he was accordingly convicted and sentenced to<\/p>\n
undergo rigorous imprisonment for four years and to pay a fine of<\/p>\n
Rs.7 lakhs under Section 5(1)(c) read with Section 5(2) of the<\/p>\n
Act. In default of payment of fine, the appellant was directed to<\/p>\n
undergo simple imprisonment for 1= years under Section 5(1)<\/p>\n
(c). Appellant was further sentenced under Section 5(1)(d) read<\/p>\n
with Section 5(2) of the Act to undergo rigorous imprisonment<\/p>\n
for four years.     He was also sentenced to undergo rigorous<\/p>\n
imprisonment for 4 years under Section 409 and 2 years rigorous<\/p>\n
imprisonment under Section 477 A IPC. It was directed that the<\/p>\n
substantive sentence of imprisonment shall run concurrently.<\/p>\n
Crl.A.No.816 OF 2000
\n                                :: 2 ::\n<\/p>\n
\nSet off was also allowed under Section 428 of the Code of<\/p>\n
Criminal Procedure. The above order of conviction and sentence<\/p>\n
is under Challenge in this appeal.\n<\/p>\n
      2. At the very outset, it has to be noticed that the appellant<\/p>\n
is reportedly dead.       But the wife and children of the<\/p>\n
deceased\/appellant has obtained leave of this court to prosecute<\/p>\n
the appeal obviously for the reason that the deceased\/appellant<\/p>\n
was imposed with a fine of Rs.7 lakhs.\n<\/p>\n
      3.   I have heard learned counsel for the appellant and<\/p>\n
Sri.P.N.Sukumaran, the learned Public Prosecutor.<\/p>\n
      4.   The prosecution case in a nut shell was that the<\/p>\n
appellant was working as an Assistant Engineer (Stores) in the<\/p>\n
Kerala Agricultural University at Mannuthi during 1986. He was<\/p>\n
in charge of the stores in the University. On a stock verification<\/p>\n
of the materials at the stores, it was noticed that there was a<\/p>\n
shortage of 78,617Kgs of tore steel.            According to the<\/p>\n
prosecution, the shortage had occurred during the period from<\/p>\n
January 1, 1986 till December 12, 1986. The total value of steel<\/p>\n
found short, was reckoned as Rs.5,73,904\/-.        The prosecution<\/p>\n
Crl.A.No.816 OF 2000
\n                                :: 3 ::\n<\/p>\n
\nalleged that the appellant being a public servant had abused his<\/p>\n
official position by corrupt and illegal means and obtained or<\/p>\n
procured undue pecuniary advantage by indulging in the criminal<\/p>\n
acts of falsification of account, criminal breach of trust, etc. with<\/p>\n
dishonest intention.\n<\/p>\n
      5. The prosecution had examined PWs 1 to 7 and marked<\/p>\n
Exts.P1 to P43 on its side. DWs1 to 6 were examined and Ext.D1<\/p>\n
to D11 were marked on the side of the defence.<\/p>\n
      6.    The trial court, after an elaborate and careful<\/p>\n
consideration of the oral and documentary evidence adduced by<\/p>\n
the prosecution, came to the conclusion that the charge levelled<\/p>\n
against the appellant had been clearly established. It was thus<\/p>\n
that the appellant was found guilty and convicted and sentenced,<\/p>\n
as mentioned earlier.\n<\/p>\n
      7.   Learned counsel for the appellant contends that the<\/p>\n
court below had egregiously erred in relying on the evidence<\/p>\n
adduced by the prosecution which by itself was totally<\/p>\n
untrustworthy. Learned counsel points out that the trial court<\/p>\n
had not properly appreciated the oral and documentary evidence<\/p>\n
Crl.A.No.816 OF 2000
\n                               :: 4 ::\n<\/p>\n
\nadduced by the accused.\n<\/p>\n
      8. The material witnesses on the side of the prosecution<\/p>\n
were PWs2, 3 and 5. PW2 was working as the Financial Assistant<\/p>\n
in the University at the relevant point of time. He had prepared<\/p>\n
Ext.P2 statements of stock for the period from January 1, 1986<\/p>\n
till December 12, 1986. In the said statement, which bore the<\/p>\n
signature of PW2, it was recorded that there was a shortage of<\/p>\n
12704 kg. of 25 m.m. tore steel, 28687 kg. of tore steel of 20m.m.<\/p>\n
thickness, 13401 kg. of 16 m.m. and 23825 Kg. of 10 m.m. tore<\/p>\n
steel.   He further stated that he had produced the relevant<\/p>\n
records before the Vigilance Court. Exts.P3 and P4 “Prized Store<\/p>\n
Ledger” (Volume I and II) were also marked through PW2.<\/p>\n
Ext.P5, indent ledger was also marked through PW2. Similarly,<\/p>\n
this witness had produced Exts.P6 to P9 daily receipts and issue<\/p>\n
registers, Exts.P10 to P15 GPS (Goods Received Sheet) etc. A<\/p>\n
perusal of the deposition of PW2 will clearly show that he had<\/p>\n
referred to all the details of the stock position available on the<\/p>\n
date of verification. He further stated that the value of the stock<\/p>\n
of steel which was found short was fixed on the basis of Ext.P26<\/p>\n
Crl.A.No.816 OF 2000
\n                              :: 5 ::\n<\/p>\n
\nproceedings of the Director of Physical Plant of the University.<\/p>\n
      9.      PW3   was    the  immediate     successor   of    the<\/p>\n
appellant\/accused.   He deposed before the court that he had<\/p>\n
assumed charge from the appellant on November 4, 1986.<\/p>\n
Ext.P27, charge report was prepared on December 12, 1986.<\/p>\n
The physical balance available as on that day was recorded in<\/p>\n
Ext.P27 in which he himself and the accused had signed. PW3<\/p>\n
has also referred to the shortage of tore steel of various<\/p>\n
thicknesses in his deposition.   He had also spoken about the<\/p>\n
procedure to be followed for the inward and outward movement<\/p>\n
of tore steel from the store and the manner in which the various<\/p>\n
registers had to be maintained at the store by the person in<\/p>\n
charge.    He also stated that the appellant in his capacity as<\/p>\n
Assistant Engineer (Stores) was the custodian of the construction<\/p>\n
materials which were kept in the yard.\n<\/p>\n
      10. PW5 was the Senior Grade Auditor of the University<\/p>\n
during    1987.     Ext.P34   report   prepared    by   him    and<\/p>\n
Sri.K.V.Bharathan, Inspector, Local Fund Audit was marked<\/p>\n
through this witness.    He found that anomaly to the tune of<\/p>\n
Crl.A.No.816 OF 2000
\n                               :: 6 ::\n<\/p>\n
\nRs.7,62,998 was detected during the audit. This witness had also<\/p>\n
spoken about the various anomalies noticed during the course of<\/p>\n
audit as regards the stores where the construction materials<\/p>\n
were kept. Of the other witnesses who were examined on the<\/p>\n
side of the prosecution, PW1 had proved Ext.P1 sanction order<\/p>\n
for prosecution. PW4 was the Superintendent of Police who had<\/p>\n
registered crime against the accused and PW6 was the<\/p>\n
Investigating Officer who conducted the investigation. PW7, the<\/p>\n
Dy.S.P. laid the charge sheet before the court.<\/p>\n
      11.    As mentioned earlier, the evidence of the prime<\/p>\n
witnesses namely PWs2, 3 and 5 did clearly establish that the<\/p>\n
prosecution had succeeded in proving the charge against the<\/p>\n
accused. I have been taken through the depositions of the entire<\/p>\n
prosecution witnesses and also that of the defence witnesses.<\/p>\n
      12. It is contended by learned counsel for the appellant that<\/p>\n
the evidence of DWs1 and 2 will show that appellant was not<\/p>\n
solely responsible for the shortage in the stock. But the evidence<\/p>\n
of these witnesses had been elaborately discussed by the trial<\/p>\n
court. I do not deem it necessary to refer to the evidence of<\/p>\n
Crl.A.No.816 OF 2000
\n                               :: 7 ::\n<\/p>\n
\nthose witnesses at this stage in detail. Suffice it to say that the<\/p>\n
defence had not succeeded in making any dent in the prosecution<\/p>\n
case.    It is true that DW1 and DW3 to 6 who were former<\/p>\n
employees of the Agricultural University had made an attempt to<\/p>\n
suggest that the procedure followed for maintenance and release<\/p>\n
of stock in the Store in the University all along had not been<\/p>\n
above board or fool proof and many irregular practices were<\/p>\n
prevalent in the Store management. The obvious attempt of the<\/p>\n
above witnesses was to create confusion or suspicion in the mind<\/p>\n
of the court as regards the inward and outward movement of the<\/p>\n
materials of the store.\n<\/p>\n
      13. Having carefully perused the entire materials available<\/p>\n
on record and also the depositions of the witnesses examined in<\/p>\n
the case, both on the side of the prosecution and the defence, I<\/p>\n
am satisfied that the trial court was right in holding the appellant<\/p>\n
guilty of the offences alleged.\n<\/p>\n
      14. What remains is only the quantum of sentence imposed<\/p>\n
on the appellant, especially the fine of Rs.7,00,000\/- imposed on<\/p>\n
him under Section 5(1)(c) of the Act. The specific case of the<\/p>\n
Crl.A.No.816 OF 2000
\n                              :: 8 ::\n<\/p>\n
\nprosecution was that the loss sustained by the University due to<\/p>\n
shortage of the stock was to the tune of Rs.5,73,904\/-. According<\/p>\n
to PW2, who was the Financial Assistant of the University, the<\/p>\n
above sum was quantified on the basis of Ext.P26 proceedings of<\/p>\n
the Director of Physical Plant. It was admitted by PW2 that the<\/p>\n
amount of Rs.5,73,904 included establishment damage, storage<\/p>\n
charge, supply bill charge, etc.      The prosecution had not<\/p>\n
adduced any evidence to show what was the exact amount under<\/p>\n
the head of establishment damage, storage charge, etc.<\/p>\n
Similarly, it was admitted by PW2 that Ext.P26 proceedings of<\/p>\n
the D.P.P. was relied on for fixing the value of tore steel which<\/p>\n
was found short. A perusal of Ext.P26 will show that it was only<\/p>\n
a photocopy of a proceedings allegedly issued by the D.P.P. It<\/p>\n
was also admitted by PW2 that the value was fixed in the year<\/p>\n
1998 based on Ext.P26.       However, the accused had never<\/p>\n
challenged marking of Ext.P26 in the case. Therefore, I am not<\/p>\n
persuaded to totally discard Ext.P26. But still, in the absence of<\/p>\n
any evidence to show what was the establishment damage,<\/p>\n
storage charge, etc., I am of the view that the fine imposed on<\/p>\n
Crl.A.No.816 OF 2000
\n                               :: 9 ::\n<\/p>\n
\nthe appellant is on the higher side.\n<\/p>\n
      Having regard to the peculiar facts and circumstances of<\/p>\n
the case, I am satisfied that ends of justice will be met, if the fine<\/p>\n
amount imposed on the appellant is reduced particularly since he<\/p>\n
is no more. For the reasons stated above, while confirming the<\/p>\n
order of conviction, the amount of fine is reduced from<\/p>\n
Rs.7,00,000\/- to Rs.5,00,000\/-.    With the above modification in<\/p>\n
the amount of fine, the appeal is closed.\n<\/p>\n<\/p>\n
                                          (A.K.BASHEER, JUDGE)
\njes<\/p>\n
Crl.A.No.816 OF 2000
\n                        :: 10 ::\n<\/p>\n<\/p>\n
                                           A.K.BASHEER, J.<\/p>\n
                                   – – – – – – – – – – – – – – – – – – – – – – –
\n                                      Crl.A.No.816 OF 2000\n<\/p><\/blockquote>\n
                                   – – – – – – – – – – – – – – – – – – – – – – –\n<\/p><\/blockquote>\n
                                               JUDGMENT<\/p>\n
                                       Dated 10th July 2008<\/p>\n<\/blockquote>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Jose Mathew vs State Of Kerala on 10 July, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 816 of 2000() 1. JOSE MATHEW … Petitioner Vs 1. STATE OF KERALA … Respondent For Petitioner :SRI.P.VIJAYA BHANU For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice A.K.BASHEER Dated :10\/07\/2008 O R D […]<\/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-21847","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJose Mathew vs State Of Kerala on 10 July, 2008 - 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\/jose-mathew-vs-state-of-kerala-on-10-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jose Mathew vs State Of Kerala on 10 July, 2008 - 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