{"id":263287,"date":"2011-01-10T00:00:00","date_gmt":"2011-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-sivaraman-vs-deputy-superintendent-of-police-on-10-january-2011"},"modified":"2015-04-02T04:53:17","modified_gmt":"2015-04-01T23:23:17","slug":"m-sivaraman-vs-deputy-superintendent-of-police-on-10-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-sivaraman-vs-deputy-superintendent-of-police-on-10-january-2011","title":{"rendered":"M.Sivaraman vs Deputy Superintendent Of Police on 10 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.Sivaraman vs Deputy Superintendent Of Police on 10 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 294 of 2002()\n\n\n1. M.SIVARAMAN S\/O.CHEYIKUTTY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. DEPUTY SUPERINTENDENT OF POLICE,\n                       ...       Respondent\n\n2. STATE-REPRESENTED BY PUBLIC PROSECUTOR,\n\n                For Petitioner  :SRI.T.G.RAJENDRAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :10\/01\/2011\n\n O R D E R\n                  M.Sasidharan Nambiar, J.\n\n                  --------------------------------------\n\n                     Crl.A.No.294 of 2002\n\n                  --------------------------------------\n\n                            JUDGMENT\n<\/pre>\n
     Appellant, the second accused in C.C.No.9\/1999, was<\/p>\n
convicted and sentenced for the offences under Section 13<\/p>\n
(2) read with Section 13(1)(c)<\/a> of Prevention of Corruption<\/p>\n
Act and Section 409<\/a> of Indian Penal Code by Special Judge<\/p>\n
(Vigilance), Kozhikode. Prosecution case is that first<\/p>\n
accused was the Lay Secretary and Treasurer of Institute of<\/p>\n
Maternal and Child Health, Kozhikode. Appellant was the<\/p>\n
Peon therein. The treasury bills of the establishment were<\/p>\n
being presented to the Treasury and get them encashed by<\/p>\n
the first accused authorising appellant. It is the prosecution<\/p>\n
case that during the period 3.2.1992 to 25.2.1992,<\/p>\n
Rs.68,774\/- covered by Exhibit P20 series of bills which<\/p>\n
were encashed from the Treasury, by presenting the bills<\/p>\n
along with Exhibit P2 Treasury Bill Book were not<\/p>\n
accounted and both the accused misappropriated the<\/p>\n
CRA 294\/02                    2<\/span><\/p>\n
amount and thereby committed the offences. As authorised<\/p>\n
by the first accused, appellant presented Exhibits P20(d) to<\/p>\n
P20(h) bills on 25.2.1992 and got the bills passed and did<\/p>\n
not entrust the amount to the first accused. Appellant did<\/p>\n
not attend the office from 26.2.1992 onwards. First accused<\/p>\n
submitted Exhibit P1(a) report to PW1, Superintendent of<\/p>\n
Institute of Maternal and Child Health, Kozhikode informing<\/p>\n
the non receipt of the amount covered by the Treasury Bills<\/p>\n
and the absence of the appellant PW1, in turn, intimated the<\/p>\n
police under Exhibit P37(a). Based on the information Crime<\/p>\n
No.59\/1992 was registered under Exhibit P37 FIR of<\/p>\n
Medical College Police Station.    As the offences alleged<\/p>\n
include offence under Prevention of Corruption Act<\/a>, the<\/p>\n
case was transferred to Vigilance and Anti Corruption<\/p>\n
Bureau, Kozhikode. PW23, Superintendent of Police,<\/p>\n
Vigilance and Anti Corruption Bureau, re-registered the<\/p>\n
case so received as Vigilance Crime No.2\/1993 under<\/p>\n
Exhibit P44 FIR. PW22, Deputy Superintendent of Police,<\/p>\n
investigated the case. PW24 continued the investigation and<\/p>\n
CRA 294\/02                   3<\/span><\/p>\n
laid the charge on getting Exhibit P38 order sanctioning the<\/p>\n
prosecution. Learned Special Judge took cognizance of the<\/p>\n
offences under Section 13(1)<\/a> read with Section 13(2)<\/a> and<\/p>\n
Sections 409<\/a> and 109<\/a> of the Indian Penal Code. On the<\/p>\n
appearance of the accused learned Special Judge framed<\/p>\n
charge for the offences under Section 13(1)(c)<\/a> read with<\/p>\n
Section 13(2)<\/a> of Prevention of Corruption Act and Section<\/p>\n
409<\/a> of Indian Penal Code against both the accused and for<\/p>\n
the offence under Section 109<\/a> of Indian Penal Code also<\/p>\n
against the first accused. Both the accused pleaded not<\/p>\n
guilty.\n<\/p>\n
     2. Prosecution examined 24 witnesses and marked<\/p>\n
Exthibits P1 to P44. After closing the prosecution evidence,<\/p>\n
accused were questioned under Section 313<\/a> of Code of<\/p>\n
Criminal Procedure and were called upon to adduce<\/p>\n
evidence, if any.    Appellant examined DW1.        Learned<\/p>\n
Special Judge, on the evidence, found the first accused not<\/p>\n
guilty of the offences and acquitted him.      Finding that<\/p>\n
Exhibits P20 (a) to P20(h) bills were presented before the<\/p>\n
CRA 294\/02                     4<\/span><\/p>\n
Treasury, as authorised by the first accused, by the<\/p>\n
appellant and the bills were encashed by him and holding<\/p>\n
that appellant did not entrust the amount back to the first<\/p>\n
accused and he misappropriated Rs.68,774\/-, appellant was<\/p>\n
found guilty of the offences. He was convicted and<\/p>\n
sentenced to rigorous imprisonment for two years and a fine<\/p>\n
of Rs.67,481\/- and in default, simple imprisonment for two<\/p>\n
years for the offence under Section 13(2)<\/a> read with section<\/p>\n
13(1)(c)<\/a> of Prevention of Corruption Act and rigorous<\/p>\n
imprisonment for two years for the offence under Section<\/p>\n
409<\/a> of Indian Penal Code. The substantive sentences were<\/p>\n
directed to run concurrently. He was granted set off as<\/p>\n
provided under Section 428<\/a> of Code of Criminal Procedure.<\/p>\n
This appeal is filed challenging the conviction and sentence.<\/p>\n
     3. Learned counsel appearing for the appellant and<\/p>\n
learned Public Prosecutor were heard.\n<\/p>\n
     4. Argument of the learned counsel appearing for the<\/p>\n
appellant is that learned Special Judge did not properly<\/p>\n
appreciate the evidence and should have found that first<\/p>\n
CRA 294\/02                     5<\/span><\/p>\n
accused, being the Drawing and Disbursement Officer, who<\/p>\n
is responsible to keep custody of Exhibit P2 Treasury Bill<\/p>\n
Book and to present it, along with the bills for encashment<\/p>\n
was primarily responsible for the amount encashed through<\/p>\n
the appellant. It was argued that Exhibit P2 Treasury Bill<\/p>\n
Book establishes that appellant had encashed the bills as<\/p>\n
authorised by the first accused and entrusted the money to<\/p>\n
the first accused but first accused was not in the habit of<\/p>\n
properly accounting the amount so received. It was pointed<\/p>\n
out that Exhibit P2 Treasury Bill Book shows that on<\/p>\n
18.2.1992, 21.2.1992 and 25.2.1992 several bills were<\/p>\n
entrusted by the first accused to the appellant, to present<\/p>\n
them before the Treasury and first accused admitted receipt<\/p>\n
of money so encashed under many of those bills, though he<\/p>\n
is disputing entrustment of the money covered by Exhibits<\/p>\n
P20(a) to P20(h) bills. Learned counsel pointed out that<\/p>\n
when Exhibit P26, the personal register maintained by the<\/p>\n
first accused, establishes that some of the bills encashed on<\/p>\n
25.2.1992 were entrusted to the first accused by the<\/p>\n
CRA 294\/02                   6<\/span><\/p>\n
appellant, he cannot be heard to contend that the remaining<\/p>\n
amounts covered by the bills were not entrusted to him and<\/p>\n
as appellant had to take leave on compelling reasons on<\/p>\n
26.2.1992 and could not attend the office on the next two or<\/p>\n
three days a complaint was lodged to escape from the<\/p>\n
liability, as first accused was aware that audit will be<\/p>\n
conducted on 27.2.1992 and that audit would reveal the<\/p>\n
misappropriation.    It was argued that when appellant is<\/p>\n
responsible for receipt of the amount covered by Exhibits<\/p>\n
P20(a) to P20(h) bills, when first accused admitted that<\/p>\n
appellant entrusted the remaining undisputed bills, which<\/p>\n
were entrusted to the appellant by the first accused on<\/p>\n
18.2.1992, 21.2.1992 and 25.2.1992, learned Special Judge<\/p>\n
should not have accepted the case of the first accused or<\/p>\n
the prosecution that appellant did not entrust the amount<\/p>\n
covered by Exhibits P20(a) to P20(h) bills to the first<\/p>\n
accused and for the sole reason that appellant did not<\/p>\n
attend the office on 26.2.1992 and the subsequent days,<\/p>\n
appellant could not be convicted. Learned counsel pointed<\/p>\n
CRA 294\/02                    7<\/span><\/p>\n
out that appellant was convicted finding that he did not<\/p>\n
attend the office on 26.2.1992 onwards and Exhibit P2<\/p>\n
Treasury Bill Book was not returned by the appellant to the<\/p>\n
first accused but there is no evidence to prove that Exhibit<\/p>\n
P2 Treasury Bill Book was returned to the appellant on<\/p>\n
25.2.1992. It was argued that evidence would establish that<\/p>\n
when bills are objected to by the Treasury Officer, there is a<\/p>\n
practice of retaining the Treasury Bill Book in the Treasury<\/p>\n
and Exhibit P2 shows that two bills were objected on audit<\/p>\n
reasons and in such circumstances, explanation of the<\/p>\n
appellant that Exhibit P2 Treasury Bill Book was not<\/p>\n
returned to the first accused on 25.2.1992 should have been<\/p>\n
accepted, especially when, it is the prosecution case that<\/p>\n
subsequently Exhibit P2 Treasury Bill Book was produced<\/p>\n
before the Deputy Superintendent on 15.9.1992, by PW1,<\/p>\n
the Treasury Officer.\n<\/p>\n
      5.  Learned Public Prosecutor argued that it is not<\/p>\n
disputed that Exhibits P20(a) to P20(h) bills were entrusted<\/p>\n
by the first accused to the appellant authorising him to<\/p>\n
CRA 294\/02                        8<\/span><\/p>\n
present them       before the Treasury and to get them<\/p>\n
encashed and appellant admittedly encashed them and<\/p>\n
there is no evidence to prove that the amount so received<\/p>\n
by the appellant under Exhibits P20(a) to P20(h) bills were<\/p>\n
entrusted to the first accused or to the office by the<\/p>\n
appellant and therefore, the conviction is perfectly legal.<\/p>\n
     6. The following points arise for consideration:<\/p>\n
          1. Whether appellant misappropriated Rs.68,774\/-
\n          received under Exhibits P20(a) to P20(h) bills?\n<\/p><\/blockquote>\n
          2. Whether appellant committed the offence under
\n          Section 13(1)(c)<\/a> read with Section 13(2)<\/a> of
\n          Prevention of Corruption Act and Section 409<\/a> of
\n          Indian Penal Code and if so, whether the sentence
\n          awarded is reasonable?\n<\/p><\/blockquote>\n
The Points:\n<\/p>\n
     7. The fact that appellant, the second accused, was<\/p>\n
Peon of Institute of Maternal and Child Health, Kozhikode<\/p>\n
and he was being authorised by the first accused Lay<\/p>\n
Secretary as the Disbursing Officer, to present the bills<\/p>\n
before the Treasury and to receive the amount on behalf of<\/p>\n
CRA 294\/02                    9<\/span><\/p>\n
the first accused are not disputed. It is proved by Exhibit<\/p>\n
P2 Treasury Bill Book also. It is also in evidence that even<\/p>\n
though, as per the Rules, first accused is to authorise a<\/p>\n
Clerk to present the bill and receive the amount if it<\/p>\n
exceeds Rs.10,000\/-, first accused was sending the<\/p>\n
appellant even if the bill exceeds Rs.10,000\/- is also not<\/p>\n
disputed. Prosecution case is that first accused authorised<\/p>\n
appellant to present Exhibit P20 series of bills and they<\/p>\n
were presented before the Treasury by the appellant and he<\/p>\n
received the amounts and first accused, along with the<\/p>\n
appellant, misappropriated the amount by not showing<\/p>\n
receipt of the amount in the account of the Institute of<\/p>\n
Maternal and Child Health. Learned Special Judge, on the<\/p>\n
evidence, found the first accused not guilty of the offences<\/p>\n
and acquitted him holding that there is no evidence to prove<\/p>\n
that first accused, in any way, assisted or aided appellant in<\/p>\n
the misappropriation, even though there are circumstances<\/p>\n
indicating laches on his part in the financial transactions of<\/p>\n
the establishment through the Treasury. Learned Special<\/p>\n
CRA 294\/02                   10<\/span><\/p>\n
Judge found that as appellant admitted that he received<\/p>\n
Rs.68,774\/-, evidenced by Exhibits P20(a) to P20(h) bills and<\/p>\n
there is no evidence to prove that he entrusted the amount<\/p>\n
to the first accused and as appellant did not attend the<\/p>\n
offence from 26.2.1992 onwards and did not take Exhibit P2<\/p>\n
Treasury Bill Book from the Treasury, appellant is guilty of<\/p>\n
the offences. As rightly pointed out by the learned counsel<\/p>\n
appearing for the appellant, learned Special Judge did not<\/p>\n
appreciate the evidence properly.\n<\/p>\n
     8. Exhibit P2, the Treasury Bill Book, contains the<\/p>\n
instructions to be followed by the Disbursing Officers.<\/p>\n
     9. Under Instruction No.6, Drawing Officer is<\/p>\n
personally responsible for the entries in Column Nos.1 to 6<\/p>\n
and 12 to 13 and for any omission to make appropriate<\/p>\n
entries in these columns in respect of any bill. Similarly, the<\/p>\n
Treasury officer shall be responsible for entries in Columns<\/p>\n
7 to 11 and for the omission to make any entry in these<\/p>\n
columns in respect of any bill presented\/ encashed at the<\/p>\n
Treasury. Column 14 may be filled up and attested by the<\/p>\n
CRA 294\/02                        11<\/span><\/p>\n
Drawing Officer or the Treasury Officer, as the case may be,<\/p>\n
according to the nature of the entry made therein.<\/p>\n
Instruction No.7 is most relevant. It reads:<\/p>\n
          “Columns 12 and 13 shall be completed by the
\n          Drawing Officer on the same day of encashment of
\n          the bill.”<\/p><\/blockquote>\n
\n
     10. Under Instruction No.8, when a bill is objected to<\/p>\n
in the Treasury, the word ‘objected’ should be got written in<\/p>\n
column 10 by the Treasury or the Sub Treasury Officer with<\/p>\n
dated signature in column 11. When such bills are<\/p>\n
presented again after clearing the objections, bills should<\/p>\n
be entered afresh in the Bill Book. Instruction No.9 reads:<\/p>\n
          “Drawing Officer shall take note of the fact if
\n          columns 1 to 6 and 12 to 13 are not filled up by
\n          him, the bills presented subsequently at the
\n          Treasury will not be honoured for payment.”\n<\/p><\/blockquote>\n
Instruction No.10 reads:\n<\/p>\n
\n
          “It is the primary responsibility of the Drawing
\n          Officer to get back the Treasury Bill Book from
\n          the concerned Treasury immediately after the bills<\/p>\n
CRA 294\/02                        12<\/span><\/p>\n
           presented are cashed or objected and to keep the
\n           book safely. Used Treasury Bill Books should be
\n           preserved as a permanent record.”\n<\/p><\/blockquote>\n
Therefore, under Instruction No.7, Drawing Officer is<\/p>\n
expected to complete columns 12 and 13 on the same day of<\/p>\n
encashment of the bill. Column 12 relates to the date of<\/p>\n
entry in the cash book and column 13 signature of the<\/p>\n
Drawing Officer in charge of the cash. Therefore, it is clear<\/p>\n
that when a bill, along with the Treasury Bill Book, is<\/p>\n
presented before the Treasury for encashment either by the<\/p>\n
Disbursing Officer personally or as authorised by him by<\/p>\n
some other subordinate officer, as and when the bill is<\/p>\n
encashed or objected to, the Treasury Bill Book shall be<\/p>\n
received back by the drawing Officer and on the date of<\/p>\n
encashment of the bill itself, columns 12 and 13 are to be<\/p>\n
filled up. If column 12 is to be filled up on the same day, it is<\/p>\n
mandatory that receipt of the amount covered by the bill<\/p>\n
should be entered in the cash book on the same day and<\/p>\n
then only, the date of entry in the cash book could be<\/p>\n
CRA 294\/02                      13<\/span><\/p>\n
entered in column 12 and Disbursing Officer could affix<\/p>\n
his\/her signature in column 13.\n<\/p>\n
      11. Exhibit P2 Treasury Bill Book conclusively establish<\/p>\n
that Exhibit P20(a) bill was presented before the Treasury.<\/p>\n
It is seen entered as Sl.No. 209 in Page No.33 of Exhibit P2.<\/p>\n
The relevant entry was separately marked as Exhibit P2(a).<\/p>\n
It is for Rs.1,293\/-. The bill shows that after it was prepared,<\/p>\n
first accused signed in it on 29.1.1992 and it was passed by<\/p>\n
the Treasury as Bill No.3372 on 29.1.1992. It shows that the<\/p>\n
amount thereunder was received by the appellant on<\/p>\n
3.2.1992. As per Instruction No.7, first accused should have<\/p>\n
shown receipt of that amount in the cash book on the same<\/p>\n
day and should have filled up columns 12 and 13 also on the<\/p>\n
same day. Exhibit P2 Treasury Bill Book shows that first<\/p>\n
accused filled up columns 12 and 13 on 30.1.1992, but did<\/p>\n
not fill up columns 12 and 13 in Exhibit P2(a) entry. At the<\/p>\n
same time, Exhibit P2 shows that in Page No.34, the bills<\/p>\n
encashed subsequently on 1.2.1992 were received by the<\/p>\n
first accused and columns 12 and 13 were filled up on<\/p>\n
CRA 294\/02                    14<\/span><\/p>\n
3.2.1992. Exhibit P2 shows that even thereafter first<\/p>\n
accused was sending bills for presentation before the<\/p>\n
Treasury through the appellant. Though Exhibit P2 shows<\/p>\n
that various bills were encashed, columns 12 and 13 were<\/p>\n
not filled up in many of the pages of Exhibit P2 Treasury Bill<\/p>\n
Book, in violation of the mandatory instructions provided<\/p>\n
under Instruction No.7 of Exhibit P2 Treasury Bill Book.<\/p>\n
Learned Special Judge unfortunately held that though<\/p>\n
instructions are mandatory to the Drawing Officer and if the<\/p>\n
bills are not presented following the instructions, they need<\/p>\n
not be honoured by the Treasury, it does not prohibit the<\/p>\n
Treasury officer from receiving the bills or passing the bills.<\/p>\n
I cannot agree with the said finding. When instructions in<\/p>\n
the Treasury Bill Book mandate that as when bills presented<\/p>\n
before the Treasury are encashed or objected to, the Bill<\/p>\n
Book should be received back by the Disbursing Officer<\/p>\n
from the Treasury and columns 12 and 13 should be filled<\/p>\n
up on the same day and before presenting the next bill,<\/p>\n
columns 12 and 13 should be filled up. The Treasury Officer<\/p>\n
CRA 294\/02                     15<\/span><\/p>\n
should not have passed the bill when columns 12 and 13 are<\/p>\n
not filled up regarding the bills which were passed<\/p>\n
previously.   Whatever    it   be,  when    presentation    or<\/p>\n
encashment of Exhibit P20 bill, evidenced by Exhibit P2(a)<\/p>\n
entry is not the subject matter of the charge, it is not very<\/p>\n
relevant to be considered in this appeal.\n<\/p>\n
     12. Exhibit P20(a) bill is for Rs.4,034\/-. It shows that<\/p>\n
the bill relates to arrears of pay consequent to the pay<\/p>\n
fixation of several employees, including PW4, the Nursing<\/p>\n
Assistant. Exhibit P2 Treasury Bill Book shows that it was<\/p>\n
prepared as Bill No.444\/91-92 and was entered in Exhibit<\/p>\n
P2 as Sl.No.254 and was presented before the Treasury<\/p>\n
through the appellant, along with Exhibit P2 bill book. The<\/p>\n
relevant entry shows that first accused signed in column 6<\/p>\n
on 17.2.1992 and the bill was passed on 18.2.1992. Though<\/p>\n
learned Special Judge, on the evidence, found that there is<\/p>\n
no evidence to prove that appellant, who admittedly<\/p>\n
encashed the amount, did not pay the amount covered by<\/p>\n
Exhibit P20(a) bill to the first accused, Exhibit P2 bill book<\/p>\n
CRA 294\/02                   16<\/span><\/p>\n
shows that several other bills were also presented before<\/p>\n
the Treasury by the appellant on the same day and were<\/p>\n
encashed. Sl.No.251 is a bill for reimbursement for<\/p>\n
Rs.3,350\/- and it was presented on 17.2.1992 and was<\/p>\n
passed on 18.2.1992. As Sl.No. 250, bill for Rs.15,120\/-,<\/p>\n
being the GPF advance, was presented through appellant on<\/p>\n
17.2.1992 and was passed on 17.2.1992. As Sl.No.249, GPF<\/p>\n
advance bill for Rs.10,250\/- was presented before the<\/p>\n
Treasury through the appellant and was encashed on<\/p>\n
17.2.1992. Similarly, bills shown as Sl.Nos.252, 253, 254,<\/p>\n
255, 256, 257, 258, 259 and 260 were also presented on<\/p>\n
17.2.1992 respectively for Rs.534\/-, Rs.995\/-, Rs.4,034\/-<\/p>\n
Rs.665\/-, Rs.23,120\/-, Rs.7,280\/-, Rs.2,428\/-, Rs.2,630\/- and<\/p>\n
Rs.792\/-. Columns 12 and 13 are seen filled up. Therefore,<\/p>\n
Exhibit P2 itself establishes that even though bills were<\/p>\n
presented before the Treasury through appellant and were<\/p>\n
encashed, the bill book was not properly maintained.<\/p>\n
Exhibit P26 was produced as the personal register<\/p>\n
maintained by the first accused. It is claimed that in Exhibit<\/p>\n
CRA 294\/02                   17<\/span><\/p>\n
P26 register, first accused used to enter the amounts<\/p>\n
received by him as entrusted by the appellant after bills<\/p>\n
were encashed from the Treasury. Case is that if the<\/p>\n
amounts covered by Exhibits P20(a) to P20(h) bills were<\/p>\n
encashed and those amounts were entrusted to the first<\/p>\n
accused by the appellant, it would have been entered in<\/p>\n
Exhibit P26 register. Argument is that as Exhibit P26<\/p>\n
register does not contain the entries for receipt of the<\/p>\n
amounts covered by Exhibits P20(a) to P20(h) bills, it is to<\/p>\n
be accepted that amounts were not entrusted by the<\/p>\n
appellant. If Exhibit P26 was being properly maintained and<\/p>\n
the amounts covered by the disputed bills are not seen in<\/p>\n
the said register, it could be said that appellant did not<\/p>\n
entrust the amount. But, when Exhibit P26 is a personal<\/p>\n
register maintained by the first accused and appellant has<\/p>\n
no opportunity to go through the register and when no<\/p>\n
endorsement of the appellant is being obtained in Exhibit<\/p>\n
P26 register, if first accused committed omissions in<\/p>\n
preparing Exhibit P26, based on the omissions in Exhibit<\/p>\n
CRA 294\/02                     18<\/span><\/p>\n
P26, it cannot be said that appellant did not entrust the<\/p>\n
amounts received by him, on encashing the bills, to the first<\/p>\n
accused. When Exhibit P2 Treasury Bill Book establishes<\/p>\n
that several bills were presented before the Treasury on the<\/p>\n
same day and when subsequent bills are presented before<\/p>\n
the Treasury by the Disbursing Officer and he is expected to<\/p>\n
fill up columns 12 and 13 before presenting the subsequent<\/p>\n
bills, first accused should have necessarily gone through<\/p>\n
Exhibit P2 Treasury Bill Book regarding the details of the<\/p>\n
previous bills. If first accused had gone through the relevant<\/p>\n
entries about the previous bills in Exhibit P2 before<\/p>\n
presenting the subsequent bills, he must be aware of the<\/p>\n
fact that previous bills were encashed. If that be so, defence<\/p>\n
of the first accused cannot be believed that he was unaware<\/p>\n
of encashment of the previous bills and therefore, he did not<\/p>\n
find out the omissions or misappropriation, if any,<\/p>\n
committed by the second accused. As stated earlier, when<\/p>\n
Exhibit P20(a) bill is seen passed by the Treasury on<\/p>\n
18.2.1992 as Sl.No.254 of Exhibit P2, first accused<\/p>\n
CRA 294\/02                    19<\/span><\/p>\n
admittedly presented the subsequent bills on 21.2.1992<\/p>\n
through the appellant, evidenced by Exhibit P2 Treasury Bill<\/p>\n
Book. It cannot be believed that first accused was unaware<\/p>\n
of encashment of Exhibit P20(a) bill on 18.2.1992. Exhibit<\/p>\n
P26 register also shows that first accused had shown<\/p>\n
receipt of several bills, including GPF advance Bill 83 and<\/p>\n
Treasury Bills 440, 446, 447, 448 and 449. It is also to be<\/p>\n
borne in mind that Exhibit P20(a) bill includes arrears of<\/p>\n
salary to be paid to PW4. In such circumstances, it cannot<\/p>\n
be believed that the staff will be unaware of encashment of<\/p>\n
the bills.\n<\/p>\n
     13. Exhibit P20(b) bill for Rs.14,237\/- was seen<\/p>\n
prepared on 21.2.1992. It relates to surrender of earned<\/p>\n
leave of various staff of Institute of Maternal and Child<\/p>\n
Health. It is seen presented as Bill No.450\/91-92 and passed<\/p>\n
by the Treasury as Bill No.1786 on 21.2.1992. Similarly,<\/p>\n
Exhibit P20(c) bill was seen prepared on 19.2.1992 for<\/p>\n
Rs.21,740\/- and was presented as Bill No.85\/91-92 and<\/p>\n
passed by the Treasury on 21.2.1992 as Bill No.1785. These<\/p>\n
CRA 294\/02                     20<\/span><\/p>\n
two bills are seen encashed by Token Nos.1237 and 686 by<\/p>\n
the appellant as per the endorsements made on 21.2.1992.<\/p>\n
Exhibit P2 Treasury Bill Book also shows that they were<\/p>\n
passed and encashed. The relevant entry in columns 12 and<\/p>\n
13 are not seen filled up, either in respect of the said bills or<\/p>\n
the bills presented and encashed along with those bills, on<\/p>\n
the same day. Even though Exhibit P2 Treasury Bill Book<\/p>\n
was presented along with subsequent bills on 25.2.1992, it<\/p>\n
shows that on 21.2.1992, apart from Exhibits P20(b) and<\/p>\n
P20(c) bills, Bill No.86\/91-92 for Rs.27,683\/- and Bill Nos.<\/p>\n
451, 452, 453, 454 and 455 were also presented before the<\/p>\n
Treasury on the same day respectively for Rs.5,502\/-,<\/p>\n
Rs.59\/-, 1,474\/-, Rs.838\/- and Rs.98\/- and they were all<\/p>\n
encahsed on the same day. Exhibit P26 register shows that<\/p>\n
on 27.2.1992, the amounts encahsed under GPF bills 82\/91-<\/p>\n
92, 436, 405, 404, 455, 459 and 452 are entered. But<\/p>\n
receipt of the amounts covered by Exhibits P20(b) and P20<\/p>\n
(c) bills are not seen entered. When Exhibit P2 Treasury Bill<\/p>\n
Book was definitely sent by the first accused on 25.2.1992,<\/p>\n
CRA 294\/02                    21<\/span><\/p>\n
at the time of presenting the subsequent bills before the<\/p>\n
Treasury after filling up columns 6 and 7, it can only be<\/p>\n
found that first accused had seen the relevant entries with<\/p>\n
respect to Exhibits P20(b) and P20(c) bills at least on<\/p>\n
25.2.1992, when he had filled up columns 6 and 7 and<\/p>\n
presented the subsequent bills by authorising the very same<\/p>\n
appellant to encash them on his behalf. Exhibits P20(d) to<\/p>\n
P20(h) are Bill Nos.453, 460, 462, 464 and 465 respectively<\/p>\n
for Rs.1,474\/-, Rs.15,035\/-, Rs.9,981\/-, Rs.490\/- and Rs.490\/-.<\/p>\n
The respective bills show that they were prepared on<\/p>\n
25.2.1992 and first accused authorised appellant to present<\/p>\n
those bills and encash the same. Bills were presented by the<\/p>\n
appellant before the Treasury on 25.2.1992. Exhibit P2 also<\/p>\n
shows that apart from Exhibit P20(d) to P20(h) bills, GPF<\/p>\n
Bill 84 for Rs.23,120\/-, Bill 463 for Rs.6,280\/-, Bill 451 for<\/p>\n
Rs.5,502\/- Bill 461 for Rs.5,917\/- and Bill 456 for Rs.1,192\/-<\/p>\n
were also presented and encashed on the same day. Exhibit<\/p>\n
P26 register maintained by the first accused shows that he<\/p>\n
entered receipt of Rs.23,120\/-, received by the appellant<\/p>\n
CRA 294\/02                     22<\/span><\/p>\n
under Bill No.84\/91-92, Rs.6,280\/-, received under Bill No.<\/p>\n
463, Rs.5,502\/-, received under Bill No.451, Rs.5,917\/-,<\/p>\n
received under Bill No.461 and Rs.1,192\/-, received under<\/p>\n
Bill No.456. It is, therefore, absolutely clear that out of the<\/p>\n
several bills presented by the first accused through the<\/p>\n
appellant on 25.2.1992, appellant had entrusted at least the<\/p>\n
amounts shown in Exhibit P26 register to the first accused.<\/p>\n
Though appellants claims that he entrusted the entire<\/p>\n
amount covered by Exhibits P20(d) to P20(h) bills to the<\/p>\n
first accused, it was denied by the first accused. Question is<\/p>\n
whether, on the evidence, it can be found that appellant did<\/p>\n
not entrust the amounts to the first accused and thereby<\/p>\n
misappropriated the amount or appellant, in conspiracy<\/p>\n
with the first accused, misappropriated the said amount as<\/p>\n
aided by the first accused.\n<\/p>\n
      14. Findings of the learned Special Judge are that<\/p>\n
there is no conclusive evidence to prove conspiracy between<\/p>\n
the first accused and the appellant or that first accused<\/p>\n
abetted the appellant to misappropriate the amount or<\/p>\n
CRA 294\/02                    23<\/span><\/p>\n
allowed the appellant to misappropriate the amount with his<\/p>\n
knowledge. It is on that ground first accused was acquitted.<\/p>\n
Entire case is to be appreciated in this background.<\/p>\n
     15. When the Treasury Rules and the Instructions in<\/p>\n
Exhibit P2 Treasury Bill Book mandate that when a bill is to<\/p>\n
be presented before the Treasury, along with the Treasury<\/p>\n
Bill Book, the Disbursing Officer shall fill up columns 12 and<\/p>\n
13 in the Treasury Bill Book, regarding encashment of the<\/p>\n
previous bills passed by the Treasury and he shall show the<\/p>\n
date of encashment of the bill in the cash book. When<\/p>\n
subsequent bill is to be prepared and presented before the<\/p>\n
Treasury, first accused, as the Disbursing Officer, shall,<\/p>\n
necessarily, verify whether the previous bills presented<\/p>\n
through appellant were encashed and if encashed, he<\/p>\n
should, necessarily, show receipt of the amount in the cash<\/p>\n
book and thereafter fill up columns 12 and 13 of Exhibit P2<\/p>\n
Treasury Bill Book. Hence, it cannot be believed that first<\/p>\n
accused was unaware of encashment of the previous bills<\/p>\n
when Exhibits P20(b) and P20(c) bills were presented<\/p>\n
CRA 294\/02                     24<\/span><\/p>\n
subsequently on 21.2.1992. If that be so, if there was no<\/p>\n
conspiracy as found by the learned Special Judge, first<\/p>\n
accused would not have entrusted Exhibits P20(b) and P20<\/p>\n
(c) bills to the appellant again, when he did not account for<\/p>\n
Exhibit P20(a) bill. Similarly, when the amounts received<\/p>\n
under Exhibits P20(b) and P20(c) bills, which were<\/p>\n
encashed on 21.2.1992, were not entrusted to the first<\/p>\n
accused, when Exhibits P20(d) to P20(h) bills were<\/p>\n
presented on 25.2.1992, first accused would never entrust<\/p>\n
those bills again to the appellant, with the knowledge that<\/p>\n
the amounts received under Exhibits P20(a) to P20(c) bills,<\/p>\n
which were encashed by the appellant, were not entrusted<\/p>\n
to him. As stated earlier, if Exhibit P2 Treasury Bill Book<\/p>\n
was verified by the first accused, as he should have,<\/p>\n
mandatorily, he should not have entrusted Exhibits P20(d)<\/p>\n
to P20(h) bills to the appellant again. Therefore, I have<\/p>\n
absolutely no hesitation to hold that without the knowledge<\/p>\n
or consent of the first accused, appellant could not have<\/p>\n
independently misappropriated the amounts covered under<\/p>\n
CRA 294\/02                   25<\/span><\/p>\n
Exhibits P20(a) to P20(h) bills, as found by the learned<\/p>\n
Special Judge.\n<\/p>\n
     16. The crucial question is whether there is evidence to<\/p>\n
prove that appellant misappropriated the amounts covered<\/p>\n
under Exhibits P20(a) to P20(h) bills after encashing the<\/p>\n
same from the Treasury and receiving from the Bank,<\/p>\n
without entrusting the same to the first accused. As stated<\/p>\n
earlier, on the evidence, it cannot be believed that first<\/p>\n
accused did not entrust the amount covered by Exhibits P20<\/p>\n
(b) and P20(c) bills on 21.2.1992, when first accused was<\/p>\n
well aware that Exhibit P20(a) bill for Rs.4,034\/- was<\/p>\n
encashed by the appellant on 18.2.1992. It is clear that first<\/p>\n
accused had received the amount covered by Exhibit P20(a)<\/p>\n
bill before 21.2.1992, as otherwise, he would not have<\/p>\n
entrusted Exhibits P20(b) and P20(c) bills to the appellant,<\/p>\n
authorising him to encash them. It is the similar case with<\/p>\n
Exhibits P20(d) to P20(h) bills. When Exhibit P2 Treasury<\/p>\n
Bill Book establishes that Exhibits P20(a) to P20(c) bills<\/p>\n
were already encashed by the appellant, if appellant had<\/p>\n
CRA 294\/02                   26<\/span><\/p>\n
not entrusted the amount to the first accused, it is<\/p>\n
absolutely clear that he would not have authorised<\/p>\n
appellant to present the subsequent bills and encash the<\/p>\n
same on 25.2.1992. On the evidence, it is not possible to<\/p>\n
hold that appellant did not entrust the amounts covered by<\/p>\n
Exhibits P20(a) to P20(h) bills to the first accused,<\/p>\n
especially when, admittedly, other bills authorised in favour<\/p>\n
of the appellant and encashed by him were entrusted to the<\/p>\n
first accused.\n<\/p>\n
      17. Evidence of PW1, Superintendent of Institute of<\/p>\n
Maternal and Child Health, Kozhikode is to the effect that<\/p>\n
first accused informed him on the morning of 26.2.1992 that<\/p>\n
appellant, to whom several bills were entrusted for<\/p>\n
presentation before the Treasury, did not return back from<\/p>\n
the Treasury and did not entrust the bill book or the<\/p>\n
amounts covered by the bills. According to PW1, he wanted<\/p>\n
to verify whether appellant is available at his house and<\/p>\n
advised first accused to wait till the evening. Evidence of<\/p>\n
PW4, the Nursing Assistant, is to the effect that appellant<\/p>\n
CRA 294\/02                    27<\/span><\/p>\n
attended the office on the morning of 26.2.1992 and<\/p>\n
informing that a close relative is hospitalised he left the<\/p>\n
office. PW9, the then Deputy District Medical officer, had<\/p>\n
conducted an enquiry on the allegation against the first<\/p>\n
accused and the appellant       and submitted Exhibit P27<\/p>\n
report along with the statements recorded. Exhibit P27<\/p>\n
report includes the signed written statement submitted by<\/p>\n
the first accused in the disciplinary proceedings. The said<\/p>\n
statement shows that on 18.2.1992, appellant entrusted him<\/p>\n
Rs.36,963\/-, stating that it is the amount received by<\/p>\n
encashing eight bills and on 21.2.1992, appellant entrusted<\/p>\n
Rs.36,047\/-, stating that it is the amount received by<\/p>\n
encashing eight bills and on 25.2.1992, appellant entrusted<\/p>\n
Rs.42,011\/-, stating that it is the amount received by<\/p>\n
encashing five bills. The statement further discloses that the<\/p>\n
said amounts, received by the first accused, were shown in<\/p>\n
the Cash Book, UDP Register and were disbursed through<\/p>\n
the acquittance roll. Though first accused claimed that he<\/p>\n
was not aware of encashment of the other bills, statement<\/p>\n
CRA 294\/02                    28<\/span><\/p>\n
discloses that seven tokens entrusted to the appellant, on<\/p>\n
presentation of the bills, were found in the bag which was<\/p>\n
being taken by the appellant to the Treasury, along with the<\/p>\n
bills, which was found in the office itself and subsequently,<\/p>\n
those tokens were surrendered to the Treasury. Statement<\/p>\n
further discloses that on 26.2.1992 morning, when first<\/p>\n
accused reached the office, Clerk Kumaran and PW4, the<\/p>\n
Nursing Assistant, informed first accused that appellant had<\/p>\n
attended the office in the morning and informed that his<\/p>\n
brother is ill and has to go to Parappanangadi and left the<\/p>\n
office. When first accused enquired whether he had given<\/p>\n
any leave letter, it was disclosed that he did not furnish any<\/p>\n
leave letter and therefore, appellant did not make any<\/p>\n
further enquiry. Further case in the statement is that when<\/p>\n
appellant failed to attend the office on 27.2.1992, first<\/p>\n
accused was under the impression that appellant did not<\/p>\n
attend the office as his brother’s illness aggravated. When,<\/p>\n
on 28.2.1992 also, appellant did not attend the office, first<\/p>\n
accused authorised Lift Operator K.J.Joseph to obtain the<\/p>\n
CRA 294\/02                     29<\/span><\/p>\n
Treasury Bill Book from the Treasury, who in turn, informed<\/p>\n
first accused that Bill Book is not available in the Treasury<\/p>\n
and it was taken by the appellant. When this information<\/p>\n
was given to the first accused over phone, first accused<\/p>\n
asked Joseph to go to the quarters of the appellant and get<\/p>\n
the Treasury Bill Book. Joseph, on enquiry, informed first<\/p>\n
accused that appellant is not in the quarters and he could<\/p>\n
not find the Treasury Bill Book in the quarters. The said<\/p>\n
statement of the first accused shows that evidence of PW1<\/p>\n
that first accused approached PW1 and informed him on the<\/p>\n
morning of 26.2.1992 that appellant did not come back from<\/p>\n
the Treasury and did not entrust he amounts by encashing<\/p>\n
the bills is not correct. Instead, even according to the first<\/p>\n
accused, appellant had returned from the Treasury and<\/p>\n
entrusted Rs.42,011\/- on 25.2.1992 itself.<\/p>\n
      18. Exhibit P26 personal register corroborates the<\/p>\n
statement of the first accused seen in Exhibit P27 report<\/p>\n
that at least Rs.42,011\/- was entrusted by the appellant to<\/p>\n
the first accused, being the amount received by him by<\/p>\n
CRA 294\/02                     30<\/span><\/p>\n
encashing five bills presented before the Treasury on<\/p>\n
25.2.1992. If that be so, it is clear that if Exhibits P20(d) to<\/p>\n
P20(h) bills were presented on 25.2.1992 along with other<\/p>\n
bills and passed by the Treasury and encashed by the<\/p>\n
appellant, on behalf of the first accused, appellant had<\/p>\n
returned back to the office and entrusted the amount<\/p>\n
received by him. There is no evidence to prove that<\/p>\n
appellant did not entrust the money received by him on<\/p>\n
encashing all the bills passed on that day. For the reason<\/p>\n
that first accused did not show the amounts covered under<\/p>\n
Exhibits P20(d) to P20(h) bills in Exhibit P26 register, it<\/p>\n
cannot be believed that appellant did not entrust the<\/p>\n
amounts received by encashing Exhibits P20(d) to P20(h)<\/p>\n
bills to the first accused. It is pertinent to note that even<\/p>\n
when first accused was questioned under Section 313<\/a> of<\/p>\n
Code of Criminal Procedure, he has not given any<\/p>\n
explanation as to why he omitted to take action against the<\/p>\n
appellant when the amount covered by Exhibit P20(a) was<\/p>\n
not accounted for, when Exhibits P20(b) and P20(c) bills<\/p>\n
CRA 294\/02                     31<\/span><\/p>\n
were entrusted to the appellant on 21.2.1992 or when<\/p>\n
Exhibits P20((b) and P20(c) bills were not accounted, when<\/p>\n
Exhibits P20(d) to P20(h) bills were entrusted to the<\/p>\n
appellant for encashment on 25.2.1992. In view of these<\/p>\n
intrinsic evidence, it can only be found that there cannot be<\/p>\n
a misappropriation of the amounts, covered by Exhibits P20<\/p>\n
(a) to P20(h) bills, independently by the appellant. If at all<\/p>\n
there was misappropriation, it can only be by the first<\/p>\n
accused and with the connivance of the appellant. There is<\/p>\n
absolutely no possibility for the appellant to misappropriate<\/p>\n
the amounts covered by Exhibits P20(a) to P20(h) bills<\/p>\n
without the junction of the first accused. When learned<\/p>\n
Special Judge already found that there was no conspiracy<\/p>\n
and first accused has not misappropriated the amount<\/p>\n
either independently or jointly with the appellant and the<\/p>\n
State has not challenged the said findings by filing an<\/p>\n
appeal against the order of acquittal of first accused,<\/p>\n
appellant    cannot    be   convicted    holding    that  he<\/p>\n
misappropriated the amount jointly with the first accused.<\/p>\n
CRA 294\/02                    32<\/span><\/p>\n
As the evidence do not establish that appellant did not<\/p>\n
entrust the amount received by him by encashing Exhibits<\/p>\n
P20(a) to P20(h) bills, it cannot be found that appellant<\/p>\n
misappropriated Rs.68,774\/-, covered by these bills. Hence,<\/p>\n
conviction of the appellant for the offences under Sections 7<\/a><\/p>\n
and 13(2)<\/a> read with Section 13(1)(d)<\/a> of Prevention of<\/p>\n
Corruption Act and Section 409<\/a> of Indian Penal Code can<\/p>\n
only be set aside.\n<\/p>\n
     Appeal is allowed. Conviction and sentence passed by<\/p>\n
Special Judge (Vigilance), Kozhikode in C.C.No.9\/1999<\/p>\n
against the appellant is set aside. Appellant is found not<\/p>\n
guilty of the offences charged. He is acquitted. Bail bond<\/p>\n
executed by the appellant stands cancelled.<\/p>\n
\n\n\n\n\n10th January, 2011           (M.Sasidharan Nambiar, Judge)\n\ntkv\n\nCRA 294\/02    33\n\n\n\n\n                 M.Sasidharan Nambiar, J.\n\n<\/pre>\n
                 —————————————<\/p>\n
                    Crl.A.No.294 of 2002<\/p>\n
                 —————————————<\/p>\n
                           JUDGMENT<\/p>\n
                      10th January, 2011<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.Sivaraman vs Deputy Superintendent Of Police on 10 January, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 294 of 2002() 1. M.SIVARAMAN S\/O.CHEYIKUTTY, … Petitioner Vs 1. DEPUTY SUPERINTENDENT OF POLICE, … Respondent 2. STATE-REPRESENTED BY PUBLIC PROSECUTOR, For Petitioner :SRI.T.G.RAJENDRAN For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice M.SASIDHARAN […]<\/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-263287","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.Sivaraman vs Deputy Superintendent Of Police on 10 January, 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\/m-sivaraman-vs-deputy-superintendent-of-police-on-10-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Sivaraman vs Deputy Superintendent Of Police on 10 January, 2011 - 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