{"id":23517,"date":"2011-02-02T00:00:00","date_gmt":"2011-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-c-ravi-vs-state-of-kerala-on-2-february-2011"},"modified":"2015-12-29T01:12:31","modified_gmt":"2015-12-28T19:42:31","slug":"p-c-ravi-vs-state-of-kerala-on-2-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-c-ravi-vs-state-of-kerala-on-2-february-2011","title":{"rendered":"P.C.Ravi vs State Of Kerala on 2 February, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.C.Ravi vs State Of Kerala on 2 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 773 of 2003()\n\n\n\n1. P.C.RAVI\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.VIJAYA BHANU\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :02\/02\/2011\n\n O R D E R\n                  M.Sasidharan Nambiar, J.\n\n                  --------------------------------------\n\n                     Crl.A.No.773 of 2003\n\n                  --------------------------------------\n\n                            JUDGMENT\n<\/pre>\n
     Appellant was Shop Manager of Maveli Store,<\/p>\n
Cheriyanadu during the period 24.4.1990 to 13.3.1991. He<\/p>\n
was the first accused in C.C.No.100\/2000 on the file of<\/p>\n
Special Judge (Vigilance), Thiruvananthapuram. He was<\/p>\n
convicted and sentenced for the offences under Section 13<\/p>\n
(2) read with Section 13(1)(c) of Prevention of Corruption<\/p>\n
Act and Section 409 of Indian Penal Code. This appeal is<\/p>\n
filed challenging the conviction and sentence.<\/p>\n
     2. Prosecution case was that appellant was the Shop<\/p>\n
Manager of Maveli Store, Cheriyanadu from 24.4.1990 to<\/p>\n
13.3.1991. Second accused was the Helper during<\/p>\n
24.12.1990 to 13.3.1991. Third accused was the Helper<\/p>\n
during 27.4.1990 to 4.12.1990 and fourth accused was the<\/p>\n
Helper during 10.12.1990 to 24.12.1990. It was alleged that<\/p>\n
appellant entered into a criminal conspiracy with the<\/p>\n
remaining    accused,        who        were        the  Helpers, to<\/p>\n
CRA 773\/03                   2<\/span><\/p>\n
misappropriate the commodities received at Maveli Store<\/p>\n
and in furtherance of the object of criminal conspiracy, they<\/p>\n
committed misappropriation by wilfully omitting to maintain<\/p>\n
the Daily Stock-cum-Sales Return, Cash Book, Remittance<\/p>\n
Register, Weekly Statement-cum-Sales Return, etc. and by<\/p>\n
not accounting for the sales proceeds and misappropriated<\/p>\n
an amount of Rs.1,14,589\/- and thereby committed the<\/p>\n
offences.\n<\/p>\n
     3. PW16, the Assistant Manager(Inspection), along<\/p>\n
with PW17, the Junior Manager (Inspection), conducted<\/p>\n
inspection of Maveli Store, Cheriyanadu on 6.3.1991 and<\/p>\n
7.3.1991 and prepared Exhibit P13 report. It was found that<\/p>\n
only an incomplete Stock Register was available in the<\/p>\n
Maveli Store. Cash Book, Imprest Pass Book, Imprest<\/p>\n
Vouchers, Liability Register, Daily Remittance Register,<\/p>\n
Shortage Register and Up-to-date Stock Register were not<\/p>\n
available. As inspection was conducted earlier up to the<\/p>\n
period prior to 30.9.1990, inspection was restricted to the<\/p>\n
period 1.10.1990 to 6.3.1991. It was found that basic<\/p>\n
CRA 773\/03                   3<\/span><\/p>\n
records were not maintained even after lapse of ten months,<\/p>\n
as the Maveli Store started functioning with effect from<\/p>\n
April 1990. It was found that as per the cash, though<\/p>\n
Rs.3099.60 should have been in the cash chest, only<\/p>\n
Rs.2,018\/- was found and thereby there was a shortage of<\/p>\n
cash of Rs.1,081\/-. It was also found that there was<\/p>\n
misappropriation of Rs.1,50,516.05. The inspection was<\/p>\n
conducted in the presence of the appellant and the other<\/p>\n
accused. Exhibit P13(a) statement was given and signed by<\/p>\n
the appellant admitting that there was a shortage of<\/p>\n
Rs.1,49,010.30. Appellant could not explain the shortage<\/p>\n
and in the statement, he submitted that, to explain the<\/p>\n
shortage, the records are to be examined again in detail. In<\/p>\n
Exhibit P13 report, it was specifically stated that for fixing<\/p>\n
the actual loss and misappropriation, a detailed inspection<\/p>\n
is necessary. On receipt of Exhibit P13 report, PW8, the<\/p>\n
Regional Manager, directed PW17 to conduct a detailed<\/p>\n
inspection. PW17 conducted a detailed inspection and<\/p>\n
submitted Exhibit P2 report along with Exhibit P2(a), details<\/p>\n
CRA 773\/03                   4<\/span><\/p>\n
of  liability and   trading  particulars,  based   on   the<\/p>\n
consignment notes by which the commodities were received<\/p>\n
at the Maveli Store as well as the Weekly Statements<\/p>\n
furnished from the Maveli Store to the Unit Depot. PW17<\/p>\n
found that value of the commodities received at the Maveli<\/p>\n
Store as per the consignments from 24.4.1990 to 13.3.1991<\/p>\n
was Rs.12,18,011.70. Commodities worth Rs.73,473.85<\/p>\n
were found issued on credit basis under noon feeding<\/p>\n
programme. After receipt of Exhibit P13 report, appellant<\/p>\n
was suspended on 14.3.1991. On effecting the suspension,<\/p>\n
appellant handed over charge to PW9. Exhibit P7 was the<\/p>\n
charge report prepared by the appellant in his own<\/p>\n
handwriting. In Exhibit P7, appellant furnished the details<\/p>\n
of the commodities available at the Maveli Store as well as<\/p>\n
the cash available and the shortage of cash and the records<\/p>\n
which were handed over to PW9. PW17 found that value of<\/p>\n
the commodities handed over by the appellant to PW9<\/p>\n
under Exhibit P7 was Rs.18,173.20. It was found that<\/p>\n
deducting the value of the commodities which were<\/p>\n
CRA 773\/03                     5<\/span><\/p>\n
available when appellant handed over charge to PW9 and<\/p>\n
that of the commodities issued on credit basis under noon<\/p>\n
feeding programme, from the value of the commodities<\/p>\n
received at the Maveli Store, the total amount which should<\/p>\n
have been remitted to the Bank is Rs.11,26,364.70.<\/p>\n
Verifying the remittance in the Bank, PW17 found that total<\/p>\n
remittance was only Rs.10,10,857.50. Adding Rs.86.50<\/p>\n
which was the cash handed over by the appellant to PW9, as<\/p>\n
seen from Exhibit P7, it was found that value of the<\/p>\n
unaccounted commodities was Rs.1,15,420.70. Finding that<\/p>\n
there will be fluctuations in the value and the economic cost<\/p>\n
would be more than the value shown in the consignment<\/p>\n
notes, computing an average of the minimum of 20% and<\/p>\n
maximum of 35% during the relevant period, worked out at<\/p>\n
25.85%, PW17 fixed the said amount at Rs.29,836.25.<\/p>\n
Adding it to Rs.1,15,420.70, the amount misappropriated<\/p>\n
was fixed at Rs.1,45,256.95. PW17 fixed the liability with<\/p>\n
18% interest on that amount, making a total of<\/p>\n
Rs.1,68,179.70. Based on Exhibit P13 report, PW8<\/p>\n
CRA 773\/03                  6<\/span><\/p>\n
submitted a report to the Superintendent of Police,<\/p>\n
Alappuzha. Crime No.128\/1992 of Chengannur Police<\/p>\n
Station was registered under Exhibit P53 FIR. Finding that<\/p>\n
an offence under Prevention of Corruption Act is attracted,<\/p>\n
the case was transferred to the Vigilance and V.C.No.<\/p>\n
10\/96\/VACB, Alappuzha was registered under Exhibit P58<\/p>\n
FIR.\n<\/p>\n
     4. PWs 19, 20 and 25 conducted the investigation.<\/p>\n
After completing the investigation and obtaining Exhibit<\/p>\n
P55 order issued by PW22, the Managing Director of Kerala<\/p>\n
State Civil Supplies Department, granting sanction sanction<\/p>\n
to prosecute the accused, charge was laid before Special<\/p>\n
Court (Vigilance), Thiruvananthapuram. It was taken<\/p>\n
cognizance for the offences under Sections 409, 468, 477A<\/p>\n
read with Section 120B of Indian Penal Code and Section 13<\/p>\n
(1)(c) read with Section 13(2) of Prevention of Corruption<\/p>\n
Act, 1988.\n<\/p>\n
     5. All the accused pleaded not guilty. Prosecution<\/p>\n
examined twenty five witnesses and marked fifty eight<\/p>\n
CRA 773\/03                    7<\/span><\/p>\n
exhibits. After closing the prosecution evidence, accused<\/p>\n
were questioned under Section 313 of Code of Criminal<\/p>\n
Procedure. When called up to adduce evidence, appellant<\/p>\n
examined DW1 and got marked Exhibits D1 to D9.<\/p>\n
     6. Learned Special Judge, on the evidence, found that<\/p>\n
appellant, being the Manager of the Maveli Store, is liable<\/p>\n
to account for the commodities received at the Maveli Store<\/p>\n
from the Unit Depot, after giving the intent and received<\/p>\n
under consignments and even if some commodities were<\/p>\n
received by the other accused, who are only Helpers, it is<\/p>\n
for the appellant to account for the same. Based on Exhibits<\/p>\n
P5 and P6 consignment notes relating to Maveli Store,<\/p>\n
Cheriyanadu and Exhibits P26, P27, P28 and 44 Weekly<\/p>\n
Statements-cum-Sales Return prepared and sent by the<\/p>\n
appellant and Exhibit P2 report prepared by PW17, learned<\/p>\n
Special Judge found that total value of the commodities<\/p>\n
consigned to the Maveli Store, Cheriyandu during the<\/p>\n
period from 24.4.1990 to 13.3.1991 was Rs.12,05,817\/-.<\/p>\n
Deducting Rs.7,775\/-, covered by the inadmissible portion of<\/p>\n
CRA 773\/03                   8<\/span><\/p>\n
Exhibits P5(s) and P5(ah) consignment notes, the total value<\/p>\n
of the commodities for which appellant has to account was<\/p>\n
Rs.11,98,042\/-. Based on the evidence, it was found that<\/p>\n
total amount remitted by the appellant in the Banks was<\/p>\n
Rs.10,15,003\/- and adding Rs.73,744\/-, being the value of<\/p>\n
the commodities issued on credit basis under noon feeding<\/p>\n
programme and the value of the commodities handed over<\/p>\n
to PW9, evidenced by Exhibit P7, namely, Rs.18,173\/- and<\/p>\n
cash of Rs.86.50, rounded to Rs.87\/-, which was handed<\/p>\n
over by the appellant to PW9, the amount which was found<\/p>\n
short and not accounted by the appellant was found<\/p>\n
Rs.91,305\/-. Learned Special Judge found that the said<\/p>\n
amount was fraudulently and dishonestly misappropriated<\/p>\n
by the appellant and he thereby committed the offence<\/p>\n
under Section 13(2) read with Section 13(1)(c) of<\/p>\n
Prevention of Corruption Act. Learned Special Judge found<\/p>\n
that evidence do not establish that appellant committed<\/p>\n
offences under Sections 120B, 477A or 467 of Indian Penal<\/p>\n
Code. He was acquitted of the said offences. Appellant was<\/p>\n
CRA 773\/03                    9<\/span><\/p>\n
also found guilty and was convicted for the offence under<\/p>\n
Section 409 of Indian penal code. Learned Special Judge<\/p>\n
acquitted accused 2 to 4 finding that prosecution did not<\/p>\n
establish any of the charges levelled against them. After<\/p>\n
hearing the appellant on the question of sentence, he was<\/p>\n
sentenced to rigorous imprisonment for three years and a<\/p>\n
fine of Rs.20,000\/- and in default, rigorous imprisonment for<\/p>\n
one more year for the offence under Section 13(2) read with<\/p>\n
Section 13(1)(c) of Prevention of Corruption Act. He was<\/p>\n
also sentenced to rigorous imprisonment for three years for<\/p>\n
the offence udner Section 409 of Indian Penal Code. But, no<\/p>\n
fine was imposed for the said offence, in view of the fine<\/p>\n
awarded for the other offence. He was also granted the<\/p>\n
benefit under Section 428 of Code of Criminal Procedure.<\/p>\n
     7. Learned senior counsel appearing for the appellant<\/p>\n
and learned Public Prosecutor were heard.\n<\/p>\n
     8. Argument of the learned senior counsel is that<\/p>\n
prosecution   did    not   establish   the   entrustment  or<\/p>\n
misappropriation or any fraudulent or dishonest intention. It<\/p>\n
CRA 773\/03                    10<\/span><\/p>\n
was argued that though Exhibits P13 and P2 reports were<\/p>\n
relied on by the learned Special Judge and prosecution got<\/p>\n
marked    Exhibits   P5   and    P6    book  containing   the<\/p>\n
consignment notes and also got marked Exhibits P5(a) to P5<\/p>\n
(ak) and P6(a) to P6(m) consignment notes, no evidence was<\/p>\n
let in with regard to the details of the commodities received<\/p>\n
under each of the consignment notes or the details of the<\/p>\n
commodities shown Exhibits P26, P27, P28 and P44 Weekly<\/p>\n
Statements furnished by the appellant and therefore, there<\/p>\n
is no evidence on the exact quantity of the commodities<\/p>\n
entrusted, sold or misappropriated by the appellant. It was<\/p>\n
argued that it was the learned Special Judge who calculated<\/p>\n
the value of the commodities based on the consignment<\/p>\n
notes and weekly statements, without supporting evidence<\/p>\n
and entered the finding and even the consignment notes,<\/p>\n
which were not proved, were relied on and if those<\/p>\n
unmarked consignment notes are excluded, there may not<\/p>\n
be any shortage in the value of the commodities and<\/p>\n
therefore, the conviction is not sustainable.<\/p>\n
CRA 773\/03                     11<\/span><\/p>\n
     9. Learned senior counsel also argued that there is<\/p>\n
absolutely no evidence to prove that there was any<\/p>\n
dishonest intention on the part of the appellant to<\/p>\n
misappropriate any amount and in the absence of any<\/p>\n
dishonest or fraudulent intention, as is clear from the<\/p>\n
proved facts, it is clear that appellant had furnished correct<\/p>\n
weekly statements to the unit depot and in such<\/p>\n
circumstances, even if there was any shortage due to his<\/p>\n
inexperience or lack of knowledge or negligence, it will not<\/p>\n
amount to a dishonest misappropriation and therefore, on<\/p>\n
the ground of shortage alone, appellant cannot be<\/p>\n
convicted. Learned senior counsel also pointed out that<\/p>\n
Exhibit P7 charge report itself shows that stock register<\/p>\n
was taken away by the Assistant Manager (Inspection) and<\/p>\n
evidence of PW16 corroborates that evidence and in such<\/p>\n
circumstances, when prosecution did not seize or produce<\/p>\n
the relevant records, appellant cannot be find fault for the<\/p>\n
same and in any case, on the evidence, appellant could not<\/p>\n
have been convicted. Finally, it was submitted that sentence<\/p>\n
CRA 773\/03                    12<\/span><\/p>\n
awarded is excessive and it warrants interference, in case,<\/p>\n
the conviction is to be confirmed.\n<\/p>\n
     10. Learned Public Prosecutor pointed out that when<\/p>\n
PW17 was examined and Exhibit P2 report along with<\/p>\n
Exhibit P2(a) statement was marked, correctness of the<\/p>\n
commodities received at the Maveli Store, prepared by<\/p>\n
PW17 based on the consignment notes, was not challenged<\/p>\n
and in such circumstances, appellant cannot dispute that<\/p>\n
commodities were received at the Maveli Store as assessed<\/p>\n
by PW17. It was also pointed out that learned Special Judge<\/p>\n
analysed each of the consignment notes marked and<\/p>\n
omitted to be marked with reference to the weekly<\/p>\n
statements   prepared     by  the  appellant   himself  and<\/p>\n
forwarded to the unit depot and finding that there were<\/p>\n
corrections in Exhibits P5(s) and P5(ah), Rs.7,775\/-, being<\/p>\n
the value of the corrected commodities, were deducted. It<\/p>\n
was found that Rs.91,305\/- was unaccounted and appellant<\/p>\n
has no explanation for the said shortage. It was argued that<\/p>\n
appellant did not maintain the stock registers properly or<\/p>\n
CRA 773\/03                    13<\/span><\/p>\n
the cash book and hence, it is clear that there was dishonest<\/p>\n
intention on the part of the appellant to misappropriate the<\/p>\n
amount and in such circumstances, the conviction is<\/p>\n
perfectly legal. It was also pointed out that in any case, it is<\/p>\n
conclusively established that there was a shortage of<\/p>\n
Rs.1,869.65 in cash, which should have been there as per<\/p>\n
the cash book, as admitted by the appellant himself in<\/p>\n
Exhibit P7 and no further evidence is necessary with regard<\/p>\n
to misappropriation of the said amount.\n<\/p>\n
     11. Exhibit P4 proceedings issued by the Managing<\/p>\n
Director, Kerala State Civil Supplies Corporation, provides<\/p>\n
the procedure to be followed on opening a Maveli Store. It<\/p>\n
shows that Shop Manager is in over all charge of the Store<\/p>\n
and is directly responsible for cash, goods traded in the<\/p>\n
Store, furniture and other assets of the Store. It further<\/p>\n
shows that Shop Manager shall ensure proper maintenance<\/p>\n
of the Store and is responsible for maintaining maintenance<\/p>\n
of stock accounts, assets register, consignment register,<\/p>\n
issue of bill for all sales, remittance of sales proceeds of<\/p>\n
CRA 773\/03                    14<\/span><\/p>\n
every day on the next day, to keep proper account for<\/p>\n
imprest expenses, send daily sales returns and other<\/p>\n
periodicals and open the Store on all days except Sundays<\/p>\n
and notified holdings observing the timings and to display<\/p>\n
the stock-cum-price board showing the available stock and<\/p>\n
the price. It also shows that it is for the Shop Manager to<\/p>\n
take delivery of the goods indented and to account the same<\/p>\n
in the respective registers and if any shortage is detected, it<\/p>\n
should be informed to the concerned unit depot and<\/p>\n
Regional Manager. It also provides that no sale shall be<\/p>\n
made on credit and cash collection should be kept in the<\/p>\n
cash chest, provided and the key of the cash chest and show<\/p>\n
room shall be kept by the Shop Manager on duty. It further<\/p>\n
shows that prompt accounting of the sales proceeds of the<\/p>\n
Corporation opened for the purpose should be made on the<\/p>\n
next day morning positively and till this arrangement is<\/p>\n
made, the sales proceeds shall be remitted by way of<\/p>\n
Demand Draft drawn in favour of Kerala State Civil Supplies<\/p>\n
Corporation which shall be credited in the collection<\/p>\n
CRA 773\/03                   15<\/span><\/p>\n
account of the Unit Manager concerned. It is, therefore,<\/p>\n
conclusively established that being the Shop Manager, it is<\/p>\n
for the appellant to maintain all the required registers and<\/p>\n
also to take delivery of the commodities indented from the<\/p>\n
unit depot and account them in the respective registers and<\/p>\n
remit the sales proceeds in the account maintained for that<\/p>\n
purpose by Kerala State Civil Supplies Corporation on the<\/p>\n
very next day and the cash shall be kept in the cash chest<\/p>\n
and the key of the cash chest must be in the custody of the<\/p>\n
appellant.\n<\/p>\n
     12. The fact that Maveli Store, Cheriyandu started<\/p>\n
functioning with effect from 24.4.1990 and appellant was<\/p>\n
appointed the Shop Manager and appellant has been<\/p>\n
functioning as the Shop Manager till he was suspended by<\/p>\n
PW8, after receipt of Exhibit P13 report and appellant had<\/p>\n
given charge to PW9 on 14.3.1991 are not disputed. The<\/p>\n
fact that PWs 16 and 17 conducted inspection in the Maveli<\/p>\n
Store on 6.3.1991 and 7.3.1991 and prepared Exhibit P13<\/p>\n
report in the presence of the appellant and Helpers and at<\/p>\n
CRA 773\/03                   16<\/span><\/p>\n
the time of inspection, shortage of commodities were found<\/p>\n
and Exhibit P13(a) statement was furnished by the<\/p>\n
appellant stating that a shortage of Rs.1,49,010.30 was<\/p>\n
found and there was a deficit of cash, as out of Rs.3,833\/-<\/p>\n
which should have been there as the sales proceeds, only<\/p>\n
Rs.1,081.67 was found. Appellant asserted that he is not in<\/p>\n
a position to explain the deficit at that point of time and<\/p>\n
explanation could be offered on examination of the accounts<\/p>\n
once again. As Exhibit P13 report was prepared on<\/p>\n
assumptions and it was recommended that a detailed<\/p>\n
inspection is necessary, after receipt of Exhibit P13 report,<\/p>\n
appellant was placed under suspension directing him to<\/p>\n
hand over charge to PW9. It was pursuant to the order of<\/p>\n
suspension, appellant handed over the charge to PW9 after<\/p>\n
preparing Exhibit P7 charge report in his own hand writing.<\/p>\n
Exhibit P7 shows the details of the commodities, the cash<\/p>\n
and records handed over to PW9 on 14.3.1991 and taken<\/p>\n
charge by PW9 on the same day. It further shows that cash<\/p>\n
handed over was Rs.86.50 and appellant had shown that the<\/p>\n
CRA 773\/03                     17<\/span><\/p>\n
cash, which should have been there, as per the cash balance<\/p>\n
shown in the cash book, was Rs.1,956.15. Appellant himself<\/p>\n
has shown the variation as Rs.1,869.65, though he has<\/p>\n
shown that it is the imprest account. At Page No.5 of<\/p>\n
Exhibit P7, appellant has recorded that pass book is<\/p>\n
misplaced and a duplicate pass book was applied for.<\/p>\n
Exhibit P7 itself is sufficient to prove that as on 14.3.1991,<\/p>\n
when appellant was placed under suspension, though there<\/p>\n
should have been a cash of Rs.1,956.15, appellant handed<\/p>\n
over only Rs.86.50 and there was a shortage of Rs.1,869.65.<\/p>\n
     13. Though learned senior counsel argued that<\/p>\n
appellant had accounted the same, by producing Exhibits<\/p>\n
D1, D2, D4 to D6 bills, the shortage cannot be explained.<\/p>\n
Exhibits D1, D2 and D4 to D6 bills relate to the year 1990.<\/p>\n
Moreover, if these bills were there for remitting the<\/p>\n
amounts during the relevant period, appellant should have<\/p>\n
handed over those receipts along with other records and<\/p>\n
cash at the time of handing over the charge to PW9. Even if<\/p>\n
the entire amount covered by those bills produced by the<\/p>\n
CRA 773\/03                     18<\/span><\/p>\n
appellant is accepted, it would come to only Rs.894.25 and<\/p>\n
the balance was not accounted.\n<\/p>\n
     14. There is force in the argument of the learned<\/p>\n
counsel appearing for the appellant that prosecution did not<\/p>\n
let in evidence in detail with reference to each consignment<\/p>\n
notes and the corresponding weekly statements sent by the<\/p>\n
appellant. But, I cannot agree with the argument of the<\/p>\n
learned senior counsel that on that ground, finding of the<\/p>\n
learned Special Judge, on a proper analysis of the<\/p>\n
consignment notes and weekly statements forwarded by the<\/p>\n
appellant, the shortages found out correctly are to be<\/p>\n
ignored or cannot be upheld. It is to be borne in mind that it<\/p>\n
was in the presence of the appellant, PWs 16 and 17<\/p>\n
inspected the Maveli Store, verified the records and<\/p>\n
commodities and submitted Exhibit P13 report. It is clear<\/p>\n
that they satisfied the appellant that there was shortage of<\/p>\n
commodities to the value of Rs.1,49,010.30. It is thereafter<\/p>\n
PW17 conducted a detailed inspection and furnished Exhibit<\/p>\n
P2 report along with Exhibit P2(a) statement showing the<\/p>\n
CRA 773\/03                   19<\/span><\/p>\n
details of each of the commodity received at the Maveli<\/p>\n
Store, including its weight and value. Though PW17 or the<\/p>\n
other officers of Civil Supplies Department, who were<\/p>\n
examined, did not give evidence with reference to the<\/p>\n
contents of each of the consignment notes or the details of<\/p>\n
the commodities received thereunder, evidence of PW17<\/p>\n
shows that said report was prepared with reference to the<\/p>\n
consignment notes available at the Maveli Store as well as<\/p>\n
at the unit depot and on comparing each with the other and<\/p>\n
satisfying that   there  are   same    corrections in the<\/p>\n
consignment notes available in the Maveli Store as well as<\/p>\n
in the unit depot. PW17 also deposed how he fixed the<\/p>\n
shortage based on this data. PW17 was not cross-examined<\/p>\n
with reference to the correctness of the commodities or the<\/p>\n
weight of each of the commodity recorded in Exhibit P2(a)<\/p>\n
statement. There is no case for the appellant, when PW17<\/p>\n
was cross-examined, that quantum of the commodities<\/p>\n
recorded in Exhibit P2(a) statement are not correct or are<\/p>\n
not in accordance with the quantity of the commodities<\/p>\n
CRA 773\/03                   20<\/span><\/p>\n
noted in Exhibits P5 and P6 consignment notes. Similarly, it<\/p>\n
is not disputed that Exhibits P26, P27, P28 and P44 weekly<\/p>\n
statements were prepared by the appellant himself and<\/p>\n
forwarded to the unit depot. Evidence of PW17 also shows<\/p>\n
that Exhibit P2 report was prepared with reference to the<\/p>\n
said statements also. Learned Special Judge elaborately<\/p>\n
considered each of the consignment notes with reference to<\/p>\n
the weekly statements and found that receipt of the<\/p>\n
consignments is established by the entries in the weekly<\/p>\n
statements prepared by the appellant and forwarded to the<\/p>\n
unit depot. Though learned senior counsel argued that<\/p>\n
learned Special Judge was not justified in relying on the<\/p>\n
unmarked consignment notes, as no evidence was let in<\/p>\n
with reference to the said contents, learned Special Judge<\/p>\n
found that there are corresponding entires with regard to<\/p>\n
the said unmarked consignment notes in the weekly<\/p>\n
statements furnished by the appellant. Even if it is taken<\/p>\n
that as the respective consignment notes were not proved<\/p>\n
and   therefore,  they   cannot    be   relied  upon,  the<\/p>\n
CRA 773\/03                    21<\/span><\/p>\n
corresponding entires made by the appellant himself in the<\/p>\n
weekly statements establish that those commodities were<\/p>\n
received at the Maveli Store. If that be so, learned Special<\/p>\n
Judge was justified in finding that there was shortage with<\/p>\n
reference to the entires in the weekly statements forwarded<\/p>\n
by the appellant himself.\n<\/p>\n
     15. Learned senior counsel has no case that any of the<\/p>\n
findings of the learned Special Judge with reference to the<\/p>\n
consignment notes are not in accordance with the details<\/p>\n
shown in the weekly statements. In such circumstances, it is<\/p>\n
not necessary to discuss in detail each of the consignment<\/p>\n
notes relied upon by the learned Special Judge. Evidence<\/p>\n
conclusively establish that the commodities, noted by PW17<\/p>\n
in Exhibit P2(a) statement, were received at the Maveli<\/p>\n
Store, Cheriyanadu.\n<\/p>\n
     16. As stated earlier, being the Shop Manager, it is the<\/p>\n
responsibility of the appellant to enter the commodities so<\/p>\n
received in the stock register as well as show the details of<\/p>\n
the commodities sold and the balance on each day.<\/p>\n
CRA 773\/03                   22<\/span><\/p>\n
Appellant has no case that he maintained the registers as<\/p>\n
provided under Exhibit P4 proceedings of the Managing<\/p>\n
Director of Kerala State Civil Supplies Corporation.<\/p>\n
Evidence conclusively establish that there was shortage of<\/p>\n
commodities when appellant handed over charge to PW9 on<\/p>\n
14.3.1991. That shortage has been worked out by PW17 in<\/p>\n
Exhibit P2 report. True, PW17 did not value the<\/p>\n
commodities with reference to the bullet prevailing on the<\/p>\n
respective months. PW17 assessed the value taking the<\/p>\n
economic cost on an average of 25.85%. Even if that excess<\/p>\n
is not added to the total value of the commodities, there is<\/p>\n
shortage.  Learned    Special   Judge   in fact  deducted<\/p>\n
Rs.7,775\/-, being the amount covered by the items,<\/p>\n
corrected in Exhibits P5(s) and P5(ah) consignment notes<\/p>\n
and also deducted the amount covered by Exhibits D1, D2<\/p>\n
and D4 to D6 series of bills produced by the appellant<\/p>\n
before the court and fixed the shortage at Rs.91,305\/-. In<\/p>\n
fact, on the evidence, amount covered by Exhibits D1, D2<\/p>\n
and D4 to D6 bills could not have been given credit to as<\/p>\n
CRA 773\/03                    23<\/span><\/p>\n
they relate to much earlier period. Whatever it be, on the<\/p>\n
evidence, I find no reason to interfere with the findings.<\/p>\n
     17. Then the only question is whether, for this<\/p>\n
shortage, it could be said that appellant misappropriated<\/p>\n
the amount with a dishonest or fraudulent intention.<\/p>\n
Argument of the learned senior counsel is that appellant<\/p>\n
joined there only on 24.4.1990 and he was inexperienced<\/p>\n
and if due to his lack of knowledge of the procedures or<\/p>\n
accounts or at best due to his negligence there was<\/p>\n
shortage, it will not amount to misappropriation. Relying on<\/p>\n
the decision of this Court in State of Kerala v.<\/p>\n
Sudhakaran<\/a> (1988 (1) KLT SN Case No.80) and the<\/p>\n
decision of the Honourable Supreme Court in            Radha<\/p>\n
Pisharassiar Amma v. State of Kerala<\/a> ((2007) 13 SCC<\/p>\n
410), it was argued that the fact that there was shortage<\/p>\n
does not automatically establish that there was a dishonest<\/p>\n
or fraudulent intention to misappropriate the amount and<\/p>\n
mens rea is to be established and there is no evidence to<\/p>\n
prove the same. Learned single Judge in Sudhakaran’s<\/p>\n
CRA 773\/03                          24<\/span><\/p>\n
case (supra), found that all the ingredients of the offence<\/p>\n
which includes the dishonest mental condition or intention,<\/p>\n
which is termed mens rea will also have to be established<\/p>\n
and burden is to prove something much more than failure of<\/p>\n
omission. Learned single observed as follows:<\/p>\n
          “When entrustment is proved and deficiency
\n          coupled with failure to account, answer or return is
\n          established,    dishonest    misappropriation    or
\n          conversion may be a matter for inference without
\n          further proof. But that need not necessarily be so
\n          in all cases. The inference is possible only when
\n          the proved facts and circumstances lead to that
\n          conclusion. In a case where it is possible that the
\n          entrusted property might have been lost or mislaid
\n          or stolen or taken away by somebody else, the
\n          mere failure or omission without anything more
\n          will not be sufficient to prove the offence.”\n<\/p><\/blockquote>\n
That does not mean that when entrustment is proved and<\/p>\n
the accused has no explanation with regard to his failure to<\/p>\n
account for the same, an inference cannot be drawn in the<\/p>\n
absence of proof of mens rea that there was dishonest<\/p>\n
intention to misappropriate. Position would be different if<\/p>\n
he has an explanation that the article or money entrusted or<\/p>\n
under his domine was lost or was stolen or was taken away<\/p>\n
CRA 773\/03                   25<\/span><\/p>\n
by somebody else, as found by the learned single Judge. The<\/p>\n
Honourable   supreme     court  in   Radha Pisharassiar<\/p>\n
Amma’s case (supra), observed that evidence must show<\/p>\n
that accused dishonestly misappropriated or converted to<\/p>\n
his own use that property or dishonestly used or<\/p>\n
dispossessed that property in violation of any direction of<\/p>\n
law prescribing the mode in which said trust is to be<\/p>\n
discharged. Facts of the case are entirely different.<\/p>\n
     18. As stated earlier, when PWs 16 and 17 inspected<\/p>\n
the Maveli Store, there was a cash of Rs.1,081\/-. That was<\/p>\n
on 6.3.1991. Appellant handed over the charge to PW9 after<\/p>\n
he was suspended on 14.3.1991. At that time, the cash,<\/p>\n
which was handed over, was only Rs.86.50. Therefore, when<\/p>\n
Rs.1,081\/- was available on 6.3.1991, even after the deficit<\/p>\n
was pointed out to the appellant, he failed to explain the<\/p>\n
same in Exhibit P13(a) statement. When appellant handed<\/p>\n
over charge on 14.3.1991, Rs.1,081\/- was further reduced to<\/p>\n
Rs.86.50. This deficit cannot be explained by any other<\/p>\n
means like was stolen or taken away or utilised for any<\/p>\n
CRA 773\/03                   26<\/span><\/p>\n
other purpose. Even if Exhibits D1, D2 and D4 to D6 series<\/p>\n
of bills are accepted, they all relate to a period prior to<\/p>\n
6.3.1991 and cannot explain the said shortage. When<\/p>\n
appellant was aware that there was shortage of cash, he<\/p>\n
cannot be expected to spend any amount after 6.3.1991<\/p>\n
without proper receipt or voucher. If there was any such<\/p>\n
voucher or bill, it should have been available with the<\/p>\n
appellant and he should have produced it before PW9 on<\/p>\n
14.3.1991. Even at the time of Evidence, appellant has no<\/p>\n
case that balance of Rs.1,081\/-, less Rs.86.50 handed over<\/p>\n
to PW9, was spent on any account. It is, therefore,<\/p>\n
absolutely clear that appellant misappropriated that<\/p>\n
amount. With this in mind, non accounting of commodities<\/p>\n
of Rs.90,000\/-, as found by the learned Special Judge, is to<\/p>\n
be appreciated. The very fact that appellant did not<\/p>\n
maintain the registers, which should be maintained as<\/p>\n
provided under Exhibit P4 proceedings, establishes that he<\/p>\n
had a dishonest intention. If a proper stock register is<\/p>\n
maintained showing the details of the stock available after<\/p>\n
CRA 773\/03                    27<\/span><\/p>\n
deducting the sales proceeds of the commodities sold each<\/p>\n
day and the balance available, as and when an inspection is<\/p>\n
conducted in the Maveli Store, it is very easy to find out the<\/p>\n
deficit. Evidently, to circumvent that detection, the stock<\/p>\n
register was not properly maintained. That itself establishes<\/p>\n
the fraudulent and dishonest intention of the appellant. On<\/p>\n
the evidence, I have no hesitation to confirm the finding of<\/p>\n
the learned Special Judge that appellant committed offences<\/p>\n
under Section 409 of Indian Penal Code as well as Section<\/p>\n
13(2) read with Section 13(1)(c) of Prevention of Corruption<\/p>\n
Act. The fact that prosecution failed to establish that<\/p>\n
appellant committed forgery or falsified the accounts or<\/p>\n
entered into a criminal conspiracy with the other accused<\/p>\n
will not affect his conviction for the offences under Section<\/p>\n
409 of Indian Penal Code and Section 13(2) read with<\/p>\n
Section 13(10(c) of Prevention of Corruption Act, as<\/p>\n
ingredients of the offences are conclusively proved by the<\/p>\n
prosecution. Hence, the conviction for the said offences can<\/p>\n
only be confirmed.\n<\/p>\n
CRA 773\/03                   28<\/span><\/p>\n
     19. Then the only question is regarding the sentence.<\/p>\n
Learned senior counsel submitted that appellant has been<\/p>\n
facing the threat of prosecution for more than a decade and<\/p>\n
he has a wife and son to maintain and in such<\/p>\n
circumstances, leniency be shown. Learned Special Judge<\/p>\n
awarded a substantive sentence of rigorous imprisonment<\/p>\n
for three years and a fine of Rs.20,000\/- an in default,<\/p>\n
rigorous imprisonment for one year for the offence under<\/p>\n
Section 13(2) read with Section 13(1)(c) of Prevention of<\/p>\n
Corruption Act. Though substantive sentence of rigorous<\/p>\n
imprisonment for three years was also awarded for the<\/p>\n
offence under Section 409 of Indian Penal code, that<\/p>\n
sentence was directed to run concurrently. Section 13(2) of<\/p>\n
Prevention of Corruption Act provides for a minimum<\/p>\n
sentence of one year. Considering the entire facts and<\/p>\n
circumstances of the case, interest of justice will be met if<\/p>\n
the sentence is modified to rigorous imprisonment for two<\/p>\n
years and a fine of Rs.80,000\/- and in default, simple<\/p>\n
imprisonment for six months for the offence under Section<\/p>\n
CRA 773\/03                   29<\/span><\/p>\n
13(2) read with Section 13(1)(c) of Prevention of Corruption<\/p>\n
Act. In view of the said modification in the sentence,<\/p>\n
substantive sentence for the offence under Section 409 of<\/p>\n
Indian Penal Code is also to be reduced to rigorous<\/p>\n
imprisonment for two years.\n<\/p>\n
     Appeal is allowed in part. Conviction of the appellant<\/p>\n
is confirmed. Sentence is modified as follows:<\/p>\n
     Appellant is sentenced to rigorous imprisonment for<\/p>\n
two years and a fine of Rs.80,000\/- and in default, simple<\/p>\n
imprisonment for six months for the offence under Section<\/p>\n
13(2) read with Section 13(1)(c) of Prevention of Corruption<\/p>\n
Act. He is also sentenced to rigorous imprisonment for two<\/p>\n
years for the offence under Section 409 of Indian Penal<\/p>\n
Code. Substantive sentences shall run concurrently. Special<\/p>\n
Judge (Vigilance), Thiruvananthapuram is directed to<\/p>\n
execute the sentence.<\/p>\n
\n\n\n2nd February, 2011          (M.Sasidharan Nambiar, Judge)\n\ntkv\n\nCRA 773\/03    30\n\n\n\n\n                M.Sasidharan Nambiar, J.\n\n<\/pre>\n
                ————————————–<\/p>\n
                 Crl.A.No.773 of 2003<\/p>\n
                 ————————————\n<\/p>\n
                            JUDGMENT<\/p>\n
                      2nd February, 2011<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.C.Ravi vs State Of Kerala on 2 February, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 773 of 2003() 1. P.C.RAVI … Petitioner Vs 1. STATE OF KERALA … Respondent For Petitioner :SRI.P.VIJAYA BHANU For Respondent : No Appearance The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :02\/02\/2011 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-23517","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.C.Ravi vs State Of Kerala on 2 February, 2011 - 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\/p-c-ravi-vs-state-of-kerala-on-2-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.C.Ravi vs State Of Kerala on 2 February, 2011 - 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