PARAMESWARAN & ORS. v. STATE OF KERALA — 1988 DIGILAW 546 (KER)

Judgment :- 1. Criminal Appeal No. 84 of 1988 was filed by the first accused and the other three appeals by the second accused. They are the common accused in three cases tried by the Enquiry Commissioner and Special Judge, Trichur. Cases are C.C. Nos. 6, 7 and 8 of 1986. The three cases were jointly tried. Evidence was recorded in C.C. No.6 of 1986. All the three cases were disposed of by a common judgment. Offences involved are those under S.409 and 477A of the Indian Penal Code and S.5 (1) (c) of the Prevention of Corruption Act. Both of them were convicted for all the offences. Altogether, each of them was sentenced on the aggregate to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 22,350/- with a default sentence of simple imprisonment for a further period of nine months and fifteen days. 2. The offences relate to three periods ranging from 26-11-1981 to 9-6-1983. In C. C. No. 8 of 1986, the offence involved is only under S.5 (1) (c) of the Prevention of Corruption Act. Amount involved is Rs. 534/-. First accused was the Lay Secretary-cum-Treasurer and second accused was the Clerical Attender in the Government Hospital, Chavakkad. The prosecution case in C. C. No. 8 of 1986 is that in furtherance of their common intention, they committed criminal misconduct by committing criminal breach of trust in relation to Rs. 534/-received as rent for the rooms in Kerala Hospital Research and Welfare Society (KHRWS) pay ward from 26-11-1981 to 11-1-1982. The cash receipts are Ext. P5 series issued by the second accused. No corresponding entries are there in Ext. P3 cash book. In the other cash books, Ext. P9 series, also these amounts were not credited or accounted. 3. C.C. No. 7 of 1986 concerns Rs. 10,689.96 paise received in the same manner between 30-12-1982 and 9-6-1983. C. C. No. 6 of 1986 is for offences punishable under S.409 and 477A of the Indian Penal Code and S.5(1) (c) of the Prevention of Corruption Act. The total amount, which is the subject of misappropriation in that case, is Rs. 37, 500/-. That is amount short accounted on 9-1-1983. The further allegation in this case is that the entry in Ext. P3 cash book was falsified on that day. The total amount, which is the subject of misappropriation in that case, is Rs. 37, 500/-. That is amount short accounted on 9-1-1983. The further allegation in this case is that the entry in Ext. P3 cash book was falsified on that day. Prosecution in C. C. No. 6 of 1986 is with the aid of S.34 of the Indian Penal Code. 4. Second accused practically admitted having committed all the offences. His defence is that he was only acting at the direction of the first accused who is superior officer. The defence of the first accused is that he has absolutely no involvement and he was never in charge of the cash or accounts concerning the KHWRS pay ward. Though he admitted that he was the Lay Secretary-cum-Treasurer during the relevant period, he would say that he was in charge of the cash in the hospital alone. 5. The prosecution examined 17 witnesses and 3 defence witnesses were examined by the first accused. Second accused had no evidence. The prosecution documents are Exts. P1 to P25. Ext. D1 is the solitary defence document. Ext. XI, XI (a) and X2 are also practically defence documents produced and proved by DW 1. 6. It is amply proved by the prosecution evidence and it is also admitted that during the period in question first accused was the Lay Secretary-cum-Treasurer and the second accused was the Clerical Attender in the hospital. Ext. P2 is the copy of G.O (Ms) No. 147/63 dated 25-2-1963 dealing with the delegation of powers of the Lay Secretary. KHRWS pay ward is run by a co-operative society having a separate establishment. The pay wards are attached to Government hospitals. Collection of rent is through the concerned employees of the respective hospitals. Lay Secretary is the custodian of the cash and accounts. The person in charge of collection must hand over cash and accounts every evening to the Lay Secretary. Lay Secretary must verify the accounts under his seal and initial in the cash book, receive the amount and keep it in his custody in the chest, and remit it by the week end in the treasury to the credit of the KHRWS. This is what is enjoined by Ext. P7 circular read along with Ext. P2 order of delegation of power. 7. This is what is enjoined by Ext. P7 circular read along with Ext. P2 order of delegation of power. 7. The prosecution case is that both the appellants were residing together and the criminal misconduct, criminal breach of trust and falsification of accounts were effectuated in furtherance of the common intention of both. It is admitted and proved beyond doubt that whatever be the provisions in Ext. P2 and P7, both collection of amounts and maintenance of the cash book were by the second accused alone. Ext. P3 cash book contains seal of the Lay Secretary and initials purporting to be his. But the case of the first accused is that operation of the entire accounts and remittance in the treasury were by the second accused alone and he had nothing to do with it. He says that the seal was not in his possession and he never affixed the seal or put his initials in the cash book. This contention seems to be probable. The evidence is that the seal was in the room of the Clerks and initials are that of the second accused. There is no evidence to establish that at any time cash was entrusted to the first accused by the second accused or he sealed or initialled the cash book or remitted the amounts in the treasury after keeping in the chest. It appears that in spite of Exts. P2 and P7 the original arrangement prior to the appointment of Lay Secretary continued so far as the accounts of the society pay ward are concerned. Evidence has to be analysed in this background. 8. Before proceeding to deal with the evidence, I think that it may be advantageous to consider the contention raised on behalf of the first accused that the prosecution will not lie as against him for want of sanction. Undoubtedly sanction under S.6(1) of the Prevention of Corruption Act was required for prosecution. But the first accused retired from service on superannuation even before launching of the prosecution. Undoubtedly sanction under S.6(1) of the Prevention of Corruption Act was required for prosecution. But the first accused retired from service on superannuation even before launching of the prosecution. The decision of the Supreme Court in R.S. Nayak v. A.R. Antulay (1984 S. C.C(Crl) 172) is authority for the position that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant "as required by S.6 is the date on which the court is called upon to take cognizance of the offence of which he is the accused. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time the court is called upon to take cognizance of the offence committed by him as a public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying S.6 in that a public servant is not to be exposed to harassment of frivolous or speculative prosecution. 9. When faced with such a hurdle, the counsel said that the crucial date to be considered with reference to cognizance is the date on which the first information report was placed before court and not the date on which the final report under S.173 (2) was laid. I fear that the counsel is labouring under a misapprehension. At the stage of F. I; R the police officer acts only on information. What he is then doing is only to start investigation. The report is sent to court only as enjoined by S.157 Cr. P. C. It is only an intimation to court. At that stage, no decision is taken regarding the offence and the accused is not placed for trial. Investigation is the province of the police and court cannot interfere. It is the right and duty of the police officer to collect materials during investigation and decide whether an offence is disclosed and the accused has to be placed for trial before court or whether a refer report has to be filed. The question of taking cognizance arises only when the final report under S.173 (2) is laid. It is the right and duty of the police officer to collect materials during investigation and decide whether an offence is disclosed and the accused has to be placed for trial before court or whether a refer report has to be filed. The question of taking cognizance arises only when the final report under S.173 (2) is laid. That is the police report mentioned in S.190(1) (b) of the Code on the basis of which the court can take cognizance of an offence and it is clear from S.2(r) also. At that stage alone the accused is placed before court for trial and the question of taking cognizance of the offence will arise. Therefore, as against the first accused, no sanction is required under S.6 of the Prevention of Corruption Act. Against the second accused, there is Ext. P24 sanction. The validity of Ext. P24 is not under challenge. 10. The counsel for the first accused still said that the prosecution is bad because sanction, contemplated under S.197 of the Code of Criminal Procedure, was not obtained and produced and therefore, the court was not entitled to take cognizance of the offences. In support of that contention, the decision of the Supreme Court in B. Saha v. M. S. Kochar (1979 S. C. C (Crl) 939) was relied on. I do not think that the decision is of any help. At Para.17 of that decision, it was said: "The words any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in S.197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. In the wider sense, these words will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of S.197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijnath v. State of M.P, 'it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by S.197 of the Criminal Procedure Code will be attracted". I fail to understand how this decision will help the first accused. I do not think that criminal breach of trust or falsification of accounts or criminal misconduct could not be said to be directly or reasonably connected with the official duty in order to make the offence one committed while acting or purporting to act in the discharge of official duty. The real test will be whether the officer can reasonably profess to have done the act in the exercise or in purported exercise of his official duty. The connection between the act and the official duty must be a reasonable one and not merely a fanciful one. In other words, the official position should not be used as mere cloak to defend the act complained of. That is what was laid down by a Division Bench of this Court in Sankarankutty v. Deputy Superintendent of Police (1961 (1) Crl. Q. 484). Commission of criminal breach of trust cannot be said to be connected with the discharge or purported discharge of official duty. Therefore, I am unable to agree with the counsel that this is a case where there is a prohibition against the court in taking cognizance without the sanction envisaged by S.197 of the Code of Criminal Procedure. As against the first accused, no question of sanction will arise and the prosecution is perfectly maintainable. 11. Now I shall revert back to the merits of the case. As against the first accused, no question of sanction will arise and the prosecution is perfectly maintainable. 11. Now I shall revert back to the merits of the case. The post of Lay Secretary-cum-Treasurer was created in the Chavakkad Government Hospital only in July 1980. The first accused was promoted as Lay Secretary and he assumed charge on 8-10-1980. It was PW 7 who handed over charge to him. Going by Ext.P2 the first accused must be held to be in charge of the cash and accounts of the pay ward also. Since the cash and accounts of the society pay ward are also to be dealt with in the hospital, normally the first accused could be held to be in charge of that also. But his contention is that the prior arrangement continued and the clerical attender continued to operate the same. The contention of the first accused in this respect appears to be probable. At any rate, there is no evidence on the side of the prosecution establishing that the first accused was operating the cash and accounts. 12. The items of oral evidence relevant in this connection are those of PWs 1, 4, 5 and 7. PW 7 was the Medical Officer at the time when the first accused was appointed and PW 1 was the Medical Officer when he was about to relinquish charge. These two persons gave evidence in a general way that the first accused was in charge of cash and accounts. At the same time they also admitted that collection of amounts, issuance of receipts and maintenance of the cash book were all by the second accused. From the evidence of PW 1 and Ext.P3 cash book it is seen that at the time of assumption of office by the first accused no entry was made in Ext.P3 that the charge of accounts and cash relating to the society pay ward was entrusted to the first accused. At the same time in the general accounts of the hospital, the relevant entries were made. PW 7 says that this is only an omission. It can be an omission. But that omission is relevant in considering the evidence in this case. 13. One of the conditions precedent to fixing liability on the first accused is entrustment of cash to him. PW 7 says that this is only an omission. It can be an omission. But that omission is relevant in considering the evidence in this case. 13. One of the conditions precedent to fixing liability on the first accused is entrustment of cash to him. - Regarding the actions of the second accused he is attempted to be toped in only with the aid of S.34 of the Indian Penal Code. The prosecution case seems to be that after collections on each day the second accused used to entrust the cash and accounts to the first accused. The further case is that after verification of the cash book and initialling the same the first accused will be keeping the money in his custody for weekly remittance in the treasury in favour of the society. No witness was spoken to the fact that on any day any amount was entrusted to the first accused by the second accused. So also there is no oral or documentary evidence to show that any remittance of the rent relating to the Society pay ward was made by the first accused in the treasury. 14. PW 5. is another Clerk in the hospital. During the temporary absence of the second accused, he was the person who attended to his duties. During that period, he used to collect the rent and issue receipts. If actually first accused was receiving and keeping the cash every day for remittance in the treasury at the end of the week, PW 5 ought to have entrusted collections to him. But his evidence is that be retained the amounts with him and handed them over.only to the second accused on his return to duty. This evidence was accepted by the prosecution. It definitely militates against the prosecution case and support the version of the first accused. 15. Barring these items, the only evidence against the first accused consist of Ext.P3 (a) and the statement given by the second accused while questioned under S.313 of the Code. Ext.P3 (a) is the entry in Ext.P3 cash book signed by the first accused handing over charge in favour of PW 4 when she came as the successor of the first accused. Ext.P3 (a) is the entry in Ext.P3 cash book signed by the first accused handing over charge in favour of PW 4 when she came as the successor of the first accused. The argument of the Public Prosecutor was that if the first accused was not in charge of cash and accounts of the Society pay ward, he would not have handed over charge to PW 4. This is a valid argument in favour of the prosecution. 16. But it was argued on behalf of the first accused that apart from Ext.P3 (a) entry, there is nothing in the evidence of PW 4 indicating that charge was handed over by the first accused. According to him. charge was actually handed over by the second accused, but he happened to make Ext.P3 (a) entry only because second accused was not legally competent to do so. 17. Whatever that be, this part of the evidence was not put to the first accused while he was questioned under S.313. In Sharad Birchichand Sarda v. State of Maharashtra (1984 S.C.C. (Crl) 487) and in ever so many other decisions, the position of law laid down is that an item of prosecution evidence which was not put to the accused under S.313 for the purpose of enabling him to offer an explanation cannot be used as evidence against him. The answer that the omission in this respect could be cured by putting that item of evidence to the Advocate during the course of arguments for the purpose of enabling him to explain the same cannot be accepted as curing the defect in all cases. As laid down in Shivaji Sahabrao Bobade and another v. State of Maharashtra (1973 S.C.C. (Crl)1033) such a course may serve the purpose in a given case depending upon the impact or seriousness. But that question need not be considered here because nobody has a case that even such an opportunity was given. Questioning the accused under S.313(1) (b) is not an empty formality. It is mandatory and the object is to give the accused an opportunity by himself in person to explain the same. When such an opportunity was not given, the evidence cannot be used. Therefore, Ext.P3(a) is of no avail against the first accused. The statement given by the second accused alone remains. That cannot form the basis of conviction of the first accused. When such an opportunity was not given, the evidence cannot be used. Therefore, Ext.P3(a) is of no avail against the first accused. The statement given by the second accused alone remains. That cannot form the basis of conviction of the first accused. This is the position of the evidence in relation to the first accused. 18. The learned Special Judge applied S.34 of the Indian Penal Code solely on the basis of the circumstance that accused 1 and 2 were residing together in a building at Chavakkad. I do not understand how the joint residence could separate as evidence regarding common intention for the applicability of S.34. The essential conditions for invoking S.34 are prior concert and participation in action in furtherance of the common intention. There is absolutely no evidence in that respect. There may be dereliction of duty on the part of the first accused. That cannot form the basis of criminal liability even though disciplinary action could have been had. It can even be said that there may be scope for a moral conviction of the involvement of the first accused. Even then moral conviction cannot be a substitute for legal evidence, however strong the conviction is. At any rate, the first accused is entitled to escape atleast on the basis of benefit of doubt regarding his involvement. I do not feel that the prosecution evidence is sufficient to rope in the first accused either independently or with the aid of S.34 in the involvement of any of the offences for which the prosecution was launched. His conviction and sentence are therefore liable to be vacated. 19. But the position of the second accused is entirely different. The prosecution witnesses have categorically spoken to the fact that during the relevant period he was collecting rent for the Society pay wards and issuing receipts. The receipts were produced and proved. Some of the persons who made the payments were also examined. The entries in Ext. P3 cash book were proved to be in his handwriting. While questioned under S.313, he admitted the entire prosecution evidence, to be correct and he clearly admitted his involvement also. Therefore, nothing more is required to show that he committed offences punishable under S.409 and 477A of the Indian Penal Code as well as S.5 (1) (c) of the Prevention of Corruption Act. While questioned under S.313, he admitted the entire prosecution evidence, to be correct and he clearly admitted his involvement also. Therefore, nothing more is required to show that he committed offences punishable under S.409 and 477A of the Indian Penal Code as well as S.5 (1) (c) of the Prevention of Corruption Act. It is true that he stated that he was acting at the direction of the first accused. He may or may not be correct. Anyhow, there is no evidence to show that the first accused gave any direction or that they developed a common intention between themselves. Even if there was some direction from the first accused it will not in any way absolve the liability of the second accused. Therefore, the conviction of the second accused does not in any way require interference. 20. The question whether Ext. D1 statement filed by the second accused is a voluntary statement or it was the result of pressure exerted on him by the doctors and the hospital staff is therefore not a matter directly arising for consideration. Even without the aid of Ext. Dl, the liability of the second accused has been established beyond doubt. There is nothing to show that the huge amounts that came to him during the period from 26-11-1981 to 9-6-1983 were properly accounted by him. The oral and documentary evidence show that criminal misappropriation and falsification of accounts are there as alleged. That amounts to criminal misconduct also. Therefore, the conviction of the second accused on all the counts has only to be confirmed. 21. On the question of sentence, the learned counsel for the second accused requested for leniency. He said that immediately after registration of the case his client was kept under suspension and subsequently he retired from service. The counsel requested me to take into account the time lag and the possible harassment on account of a protracted trial. His only request was that the substantive terms of imprisonment in all the three cases may be permitted to be undergone concurrently, so that instead of rigorous imprisonment for three years, he need suffer only rigorous imprisonment for one year in all the three cases together. In the above circumstances, I think that ends of justice is not going to suffer by the grant of such a request. In the above circumstances, I think that ends of justice is not going to suffer by the grant of such a request. Criminal Appeal No. 84 of 1988 is allowed and the convictions and sentences as against the first accused are set aside. He is acquitted and set at liberty after cancellation of his bail bonds. Convictions and "sentences as against the second accused are confirmed and Criminal Appeal Nos. 90, 98 and 99 of 1988 are dismissed with the modification that the substantive terms of imprisonment in the three cases are permitted by the second accused to be undergone concurrently.