Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 737 (KER)

Raghavan v. State of Kerala

2010-09-27

K.HEMA

body2010
JUDGMENT : About some decades ago, a Lower Division Clerk of Office of the Superintendent of Survey and Land records was brought to law on a complaint made by the Assistant Director of Survey and Land Records before the Sub Inspector of Police. As per the allegations in the complaint, appellant, while working as a Lower Division Clerk in the office of the Superintendent of Survey and Land Records, misappropriated Government fund by drawing excess amount from the treasury by preparing certain documents and claiming the amount from the treasury. 2. The allegation is that appellant has drawn excess amount than what is due to the employees and without disbursing the full amount, he misappropriated various amounts. A total amount to the tune of Rs.23,002/- over a period of about two years from February, 1998 to May, 1990 was misappropriated. FIR was registered at the local police station as Ext.P63 on 9.7.1990 and investigation commenced at the local police station. Thereafter the case was transferred to Vigilance Department, since it involved corruption by public servant. A preliminary enquiry was conducted by Vigilance Department and thereafter Ext.P65 FIR was registered on 13.8.1991. 3. Investigation continued for some time and on finding that as per the Government order, cases involving corruption of amounts less than 25,000/- can be investigated into by local police, the case was again re-transferred to the police station within which crime was originally registered. Investigation was continued by local police. Specimen handwriting was taken from the accused, It was sent for expert opinion. On completion of investigation, charge sheet was laid by Circle Inspector of Police of the local police station against appellant alleging offence under Sections 13(l)(c), 13 (2) of Prevention of Corruption Act ('P.C. Act' for short) and Sections 409 and 477(A) of Indian Penal Code ('IPC for short). 4. The court below found that a single charge was laid in respect of a period of two years from 1998 to May 1990. Hence, a direction was issued to file a split charge. Charge was split into three and three separate charges were laid against appellant. Thus, three cases were instituted Evidence was adduced in all the three cases. Joint trial was held. PW1 to PW13 were examined and Ext.PI to P76 were marked on the side of prosecution. Accused did not adduce any evidence. Charge was split into three and three separate charges were laid against appellant. Thus, three cases were instituted Evidence was adduced in all the three cases. Joint trial was held. PW1 to PW13 were examined and Ext.PI to P76 were marked on the side of prosecution. Accused did not adduce any evidence. The court questioned the accused u/s. 313 Cr.P.C., while he disclosed he is innocent, he was made to answer for the irregularity committed by his higher officials. 5. Appellant was tried by learned Enquiry Commissioner and Special Judge ('Special Judge' for short) and it was found that he committed offence u/s 13(l)(c) and 13(2) of Prevention of Corruption Act (herein after referred to as 'PC Act'). However, he was acquitted of offences u/s 409 and 477 (A) 1PC holding that prosecution miserably failed to prove the ingredients of the said offences. According to trial court, the evidence of witnesses as well as documents, proved beyond reasonable doubt, that while accused was working as Lower Division Clerk in the office of Survey and Land Records and as such being a public servant dishonestly and fraudulently by corrupt and illegal means had drawn excess amount than the actual amount by way of salary and leave surrender of the members of staff and misappropriated that amount and caused loss to the Government. 6. The appellant was convicted and sentenced u/s.!3(l) (c) and 13(2) of the Act to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1,0007- and in default to undergo Rigorous Imprisonment for three months for the offence under section 13(2) r/w section 13(1)(c) of the Prevention of Corruption Act, 1988. Set off, if any, was allowed under section 428 Cr.P.C. The accused was found not guilty under sections 409 and 477(A) of the Indian Penal Code and he is acquitted under section 248(1) Cr.P.C of the above offences. 7. In all the three cases, same sentence was imposed, after convicting the accused for the same offence, in respect of different periods. Criminal Appeal No.1238/09 relates to the period from February, 1989 to January, 1990, Crl.Appeal. No.1239/09 relates to the period from February, 1990 to May, 1990 and Crl. Appeal No.,1234/09 relates to the period from February, 1988 to January, 1989. For convenience, I am disposing of these appeals by this common judgment. 8. Learned counsel for petitioner argued that prosecution is shabby in this case. No.1239/09 relates to the period from February, 1990 to May, 1990 and Crl. Appeal No.,1234/09 relates to the period from February, 1988 to January, 1989. For convenience, I am disposing of these appeals by this common judgment. 8. Learned counsel for petitioner argued that prosecution is shabby in this case. No office order is produced to show that accused was entrusted with collection of amount and disbursement. It is also submitted that one Raveendran and Natarajan, who are stated to be the persons to whom reduced amounts were given, were not examined. It has come out from evidence that there is a Cashier in the office, but he was not examined. It is pointed out that it is in evidence that once the amount is brought after collection from the treasury, it will be entrusted with Head Clerk or Superintendent and PW5 is the person who used to disburse the amount as per the version given by PW3. The involvement of PW5 in the offence has not been investigated into, it is argued. 9. PW4, the Assistant Director has given evidence that it is the duty of the Head Clerk to get the money and disburse. According to defence counsel, in the Chief examination itself, PW5 gave evidence that she used to go to treasury and disburse the amount. She has given contrary evidence regarding this aspect. Hence, it is submitted that it is clear from her evidence that there is no order which will reveal details of entrustment, collection, disbursement of the amount etc. It is also submitted that it has come out from evidence that there are two U.D. Clerks - one Cashier and another Lower Division Clerk in the same section and it is highly improbable that a person like appellant would be entrusted with all these works. 10. It is further contended by learned counsel for appellant that the non-production of the office order is fatal to the prosecution. If it is produced, it will go against prosecution and hence it is withheld, it is argued. Therefore, adverse inference has to be drawn against prosecution, it is strongly contended. It is also pointed out that PW5 gave evidence that the accused was not in the habit of signing while disbursing the amount and so she made complaint to the higher officials. But such complaints are not produced. Therefore, adverse inference has to be drawn against prosecution, it is strongly contended. It is also pointed out that PW5 gave evidence that the accused was not in the habit of signing while disbursing the amount and so she made complaint to the higher officials. But such complaints are not produced. PW5 herself admitted that it is the responsibility of the Head Clerk to disburse the amount. The disbursement to various persons must have been proved in the case, but absolutely not adduced. 11. According to learned defence counsel this can at the worst be a case in which the accounts could be subjected to audit objection, but it is not a case for criminal prosecution. It is also submitted that charge is too vague in the sense none of the details regarding date of entrustment and amount which was entrusted to the appellant, details regarding the person to whom the amount was disbursed, particulars of the amount withdrawn and disbursed etc. are stated in the charge. The witnesses who took the money from the accused are also not examined to establish that accused misappropriated balance amount which he had drawn in excess. 12. It is also submitted by learned defence counsel that important witnesses like Raveendran, Natarajan, Devaki are not even questioned by police. Learned defence counsel also submitted that appellant underwent the trauma of long pending trial for a period of over ten years and he was prosecuted not based on any satisfactory evidence and without even questioning relevant witnesses. He was not paid the pensionary benefits, since his date of retirement i.e., 31.5.2006 and a writ petition was filed and it was ordered by this court in the said petition that as long as judicial proceedings are pending against him, he cannot claim the benefit of full pension, commutative value of pension or DCRG, and the writ petition was dismissed. 13. Learned public prosecutor strongly contended that none of the arguments are sustainable. It is in evidence that appellant used to write pay bills, collect amount from treasury and disburse the same to various employees. In fact, he himself admitted while questioning u/s.313 Cr.P.C that he used to write pay bills etc. Various amounts, which he had misappropriated by drawing excess amount are shown in Ext.PSS and P59 which are statements of accounts and those were handed over to police without any delay. In fact, he himself admitted while questioning u/s.313 Cr.P.C that he used to write pay bills etc. Various amounts, which he had misappropriated by drawing excess amount are shown in Ext.PSS and P59 which are statements of accounts and those were handed over to police without any delay. All the relevant registers such as acquittance register, treasury cash bill books etc. are seized in this case are produced in court. 14. It was pointed out that the bill register shows that the bills are presented and the amounts are withdrawn. The appellant was in the habit of. showing excess amount in the bills, collect the same from the treasury and without paying the full amount to the employees, used to misappropriate the amount. In the beginning, he used to make misappropriation in respect of his own salary, by showing amount, than what is due. But later, he started committing misappropriation by making excess claims in respect of other employees as well. It was done in such a way that he had not to make any erasure, addition of correction of the amount, since in the records maintained in the office and the bill book, he showed the correct amounts. 15. However, in acquittance roll, he used to show the excess amount claimed, it is submitted. It is only on a perusal of those documents that misappropriation could be detected, that too when the appellant took leave on 2.7.1990. It was the day on which salary was to be collected, in respect of the employees in the month of June, 1990. PW3 was sent to his house and he collected the acquittance register and token. He collected the amount from the treasury by giving a token and entrusted the same to PW5. 16. It is further argued that after disbursing the amount by PW5, it was found more than Rs.3,000/- was in excess and an enquiry was made when it was found that excess amounts were shown in the acquittance register and the matter was reported to the higher officials and it was found that various amounts were drawn illegally for a period from 1988 to 1990 and bills are collected and a complaint was made at the earliest on 9.7.1990 itself. There is absolutely no delay in lodging the complaint, it is submitted. 17. There is absolutely no delay in lodging the complaint, it is submitted. 17. It was also pointed out that within seven days, the department reported the matter to the police and FIR was registered. It is also submitted that PW3, 4, and 5 all said that accused used to write bills, go to the treasury and disburse the amount and hence, absence of non production of office order is of no consequence. While questioned u/s. 313 Cr.P.C. the admitted to question No. 22 that he used to write the bills. It was submitted that non-examination of Lower Division Clerk etc. is not challenged at the time of evidence and their non examination will not affect the case of the prosecution. 18. It was also pointed out that accused himself has made a claim and taken excess money, but the trend of cross-examination reveals that the blame was put to PW5, Head Clerk, as if she was responsible for defalcation etc. There is overwhelming evidence that appellant himself was dealing with the money, drawing the same and misappropriate it without disbursing the amount, it is submitted. 19. It is also submitted that acquittal of the appellant u/s 409, 477(A) will not affect conviction u/s.13(1)(c), since the modus operandi was not falsifying the account by making any additions or erasions but it was by showing excess amount in the acquittance roll and without paying full amount shown therein. If, as argued by defence counsel, charge is vague, it cannot be a ground to acquit the accused in a case of this nature, it is submitted. The case may be remanded at the most, since there are some omissions in the charge, it is submitted. 20. On hearing both sides and on going through records in detail, I find that the appellant is found guilty u/s.13(1)(c)of the P.C Act. As per section 13(l)(c), a public servant will be liable for punishment for criminal misconduct, if he dishonestly and fraudulently misappropriates or otherwise converts for his own use any property "entrusted" to him or under his control as a public servant or allows any person to do so. As per section 13(l)(c), a public servant will be liable for punishment for criminal misconduct, if he dishonestly and fraudulently misappropriates or otherwise converts for his own use any property "entrusted" to him or under his control as a public servant or allows any person to do so. A plain reading of Sec.13 (l)(c) makes it clear that a person will be liable for offence under the said section if the following ingredients are established: (i) that he was entrusted with certain property or that such property is in his control and (ii) that he dishonestly and fraudulently misappropriated or otherwise converted such property for his own use. (He may be liable for punishment if he allows any person to do so). 21. The important ingredient of the offence under Section 13(l)(c) of the PC Act is "entrustment" of the property, which is misappropriated by the accused. In a case involving "misappropriation," under Section 13(1)(c), prosecution must allege and prove that the property which is misappropriated either "entrusted" with the accused or was in his control. In all the three cases as per the charge framed by Court, there is not even a whisper regarding any "entrustment" of any property to the accused at any point of time or period or that he was in control of such amount. There is also no evidence on such aspects. It is relevant to quote one of the charges as hereunder: "That you, the accused while working as Lower division Clerk at the office of the Superintendent of Survey and Land Records, Re-Survey, Vatakara, and as such being a public servant dishonestly and fraudulently by corrupt and illegal means, had drawn excess amount than the actual amount due, by way of salary and leave surrender, incorporating such entries in the records in respect of the members of the staff of that office for the period from February, 1989 to January, 1990 and thus, caused a loss of Rs.11,599/- to the Government and thereby, you have committed the offence of misappropriation punishable under section.13(2) r/w section 13(l)(c) of the Prevention of Corruption Act, 1988 and under sections 409 and 477(A) of the Indian Penal Code, within my cognizance" (emphasis supplied). 22. The only overt acts allegedly committed by accused as per the charge laid by the court is that he had drawn excess amount than actual amount and incorporated such entries in the records. 22. The only overt acts allegedly committed by accused as per the charge laid by the court is that he had drawn excess amount than actual amount and incorporated such entries in the records. Whether he had any authority to draw the amount or whether he is entrusted with such amount is not stated in the charge or spoken to by any witness in court. There is also nothing on record to show that he was at least in "control" of the amount which he allegedly misappropriated. Proof of drawal of excess money alone will not constitute offence u/s 13(l)(c). The expressions such as "dishonestly", "fraudulently", "by corrupt and illegal means" etc., used in the charge will not make the position any better to constitute the offence. 23. A close reading of the charge laid by the court also reveals that appellant was called up to answer the offence of "misappropriation" but it is not even mentioned in the charge that he "misappropriated", any amount. All what is stated in the charge is that he had "fraudulently "and "dishonestly" drawn excess amount than actual amount due, but it is not alleged in the charge that he had misappropriated the same or converted the same to his own use. In the absence of relevant allegations being made in the charge and without bringing relevant facts to the notice of accused, which are very material in the case, an accused shall not be convicted for an offence u/s 13(l)(c) of the P.C. Act. 24. The absence of making allegations in the charge regarding vital facts constituting the offence cannot be treated as a mere error or irregularity which is not fatal. It is relevant to note that even the word "misappropriate" is not stated in the charge. The absence or failure to state those vital aspects in the charge goes to the root of the matter. The accused stood trial on the basis of charges, which are devoid of the details as required under the provisions contained in Sections 211 and 212 of Cr.P.C. In a case falling under Section 13(l)(c) of the PC Act, it is not sufficient to say that the Government lost certain amount or that accused drew an excess amount than the actual amount due or that certain entries were made in the records in respect of members of the staff for a period of certain months etc. 25. The fact that the accused was entrusted with the money or was in control of such money and it was misappropriated have not been proved in this case. Prosecution appears to have a case that accused was writing the pay bill, collecting amounts from the treasury and disbursing the same to various staff in the office. But there is absolutely no record or evidence in this case to show that he had written any particular bill, collected any particular amount from the treasury or disbursed any amount to any staff of the office. The mere allegation, particularly oral assertions by witnesses may not be sufficient to establish such relevant facts. 26. General allegation that accused used to collect the amount, he used to write bills, he used to disburse the amount is not sufficient at all for a court to conclude and he was writing the amount and disbursing the amount during the relevant period. On a scan through evidence, it appears that even the allegation of drawing of excess amount is made only in respect of one Raveendran and Natarajan. Regarding no other employee, even oral evidence is adduced in this case to hold that appellant prepared any pay bill or collected the amount from treasury or disbursed the same to staff or that he had prepared any document in respect of such amount. 27. Coming to the instance in respect of Raveendran and Natarajan, the evidence of PW2 Assistant Director is relevant. He has given evidence that entry No.41 in Acquittance Register, Ext.P38 relates to one Raveendran and amount shown is Rs.1,875/- at page 87 but in Pay Bill Register, the corresponding entry in 5/90 is Rs.875/-. In the chief examination of PW2 stated that the amount which was "given" as per Ext.P38, to Raveendran is Rs.1,875/- and he also stated that as per that as per Ext.P23 what is "received" by Raveedndran is Rs.875/-. This itself is contradictory. This is the nature of evidence adduced relating to one and only instance of payment. 28. No evidence is adduced to show that it was the appellant himself who received the said amount from the treasury or that he was the person who had prepared the pay bills or he was the person who had made entry in Ext.P38. To prove receipt of money from Treasury, there will be ample documentary evidence, but it is not produced. To prove receipt of money from Treasury, there will be ample documentary evidence, but it is not produced. There is absolutely no evidence to show that appellant was either entrusted with the money which he allegedly misappropriated or that he was in control of such money. 29. In this context, it is relevant to note the manner in which prosecution attempted to prove that relevant writings are in the handwriting of and signature of appellant. PW9 is the expert who was examined in this case to prove that relevant entries are made by appellant. But nowhere in his evidence he had stated that the relevant entries or the signatures belong to accused, though those are sought to be proved to be in the handwriting and signature of the accused. PW9 did not state in his evidence that any entry was made in the handwriting of the accused or under his signature. Mere production of a report of a handwriting expert will not prove that relevant handwriting and signature belong to accused. 30. The contents of report of handwriting expert will not constitute substantive evidence. Expert has to give evidence relating to details of what he perceived and also state in evidence what is his opinion on the relevant aspects. But, PW9, the expert did not depose even a single word to show that any particular entry in any document was made by accused, under his signature. It is also interesting to note that the book, which allegedly contained accused's handwriting and signature, was not even confronted with PW9 while he was giving evidence in court. 31. In the absence of questioned document being marked and tendered in evidence and the expert giving evidence that those are in the handwriting or under signature of accused, the court come to a conclusion that the relevant entries or signatures are made by accused. Thus, there is total lack of evidence to show that accused made any entry in any of the relevant documents, which are alleged to be relevant in this case, to conclude the quilt of accused. As per the report, Ext.P68, the expert, PW9, is stated to have made a comparison of certain standard and admitted document which is marked as Ext.P75 with specimen signature of accused. As per the report, Ext.P68, the expert, PW9, is stated to have made a comparison of certain standard and admitted document which is marked as Ext.P75 with specimen signature of accused. In the report Ext.P68 at paragraph 2, expert opined that the "person who wrote the blue enclosed standard writings and signatures stamped and marked A1 to A10, S1 to S6, A1(a) to 51(c), S2(a) to S2(c), S3(a), S4(a), S5(a) and S6(a) also wrote the red enclosed questioned writings the signatures similarly stamped and marked Ql, Q2 etc.." 32. A perusal of Ext.P75 (which consists of documents marked S1, S1(a), S1(b), 51(c), 52, S2(a), S2(b)] and a comparison of the same with Ext.P76 (which is stated to be the specimen signature, handwriting) it can be seen with the signature in column No.25 in Ext.P75 has no comparison "with the signature in Ext.P76. There is a vast difference between the two signatures. In column no.25, initials start with 'SS' where as no such letters are seen in the signatures seen in Ext.P76. PW13, the Circle Inspector gave evidence that he had taken specimen handwriting and signature and it is Ext.P76. 33. Even a bare perusal and comparison of the specimen signatures with the initials in Ext.P76 with the admitted signatures show that those have no resemblance. No explanation is coming from the side of PW9 why he formed an opinion against the accused in the report, Ext.P68. Under such circumstances, no value can be attached to the evidence of PW9. The expert also did not give any oral evidence on the relevant aspects regarding his opinion and hence, contents of Ext.P68 cannot be relied upon to enter any finding against accused regarding signatures or handwriting (Vide Vijayachandran.K.K Vs. Superintendent of police (2008 (3) KLT307). 34. It can also be seen that this is a case where even without recording any finding whether the ingredients of offence are proved by prosecution, accused was convicted under section 13(l)(c) of PC Act. There is a total miscarriage of justice and I am satisfied that conviction and sentence against accused are thoroughly unsustainable. 34. It can also be seen that this is a case where even without recording any finding whether the ingredients of offence are proved by prosecution, accused was convicted under section 13(l)(c) of PC Act. There is a total miscarriage of justice and I am satisfied that conviction and sentence against accused are thoroughly unsustainable. A public servant cannot be convicted for offence u/s 13(l)(c) of P.C Act, in the absence of at least making a bare allegation in the charge, that he misappropriated or otherwise converted for his own use, any property entrusted to him or under his control as a public servant or he allowed any person to do. 35. It is also interesting to note that trial court found the prosecution has failed to establish the ingredients of offence u/s.409. One of the main ingredients of the said offence is "entrustment" or dominion over the property. Having found that ingredients under Section 409 are not proved, under no circumstance the accused can be convicted for offence u/s.13(1)(c) of PC Act, since the main ingredient of the said offence is also entrustment and dominion on the property. The misappropriation is also another ingredient, of Sec.409 and having found that prosecution failed to prove the said ingredient, there is no question of entering a conviction of accused for offence u/s 13(l)(c) of PC Act. 36. In the light of the discussion already made, I do- not think I must go to other details argued by both sides in respect of the non-production of office orders, non-examination of witnesses etc. etc. In a case where even the bare minimum allegations which constitute the alleged offence are not brought to the notice of the accused or proved an accused cannot be convicted for such offence. The conviction and sentence passed against appellant in all the three cases are unsustainable and the following order is passed: 1. The conviction and sentence passed in all the three cases against appellant under section13(l)(c) and Section 13(2) of PC Act are set aside. 2. In all the three cases, appellant is found not guilty and he is acquitted of the offence under section 13(1)(c) and Section 13(2) of PC Act. 3. Appellant is set at liberty. These appeals are allowed.