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2021 DIGILAW 282 (KER)

H. Kaleeludeen Kunju v. State of Kerala

2021-03-15

SUNIL THOMAS

body2021
ORDER : The second accused in C.C.No.3/2018 arising from V.C.No.01/2015/Kollam Vigilance and Anti-Corruption Bureau on the files of the Enquiry Commissioner, Special Judge, Thiruvananthapuram for offences punishable under section 13(2) read with section 13 (1)(c) of the Prevention of Corruption Act 1988 read with sections 120(B), 406,409,420,201,202 and 477(A) of IPC is the petitioner herein. 2. The case of the petitioner is that, he was the District Lottery Officer and the first accused was the cashier, in the office of the District lottery office, Kollam during the period from 29/7/2011 to 16/2/2013. While so, the present case was registered by the Vigilance pursuant to a search conducted in the office and the investigation thereafter. The crux of the allegation as is revealed from the final report produced as Ext.A1 is that, the petitioner entered into a criminal conspiracy with the first accused to falsify the accounts in the subsidiary cashbook, main cash book, Treasury Remittance chalan, and bank guarantee register during the period from 2011 to 2012 and thereby misappropriated a total sum of Rs.2,29,325/- including Rs. Rs.52,279/- from the credit sale. During the period from 2012 to 2013, a sum of Rs.81,33,975/- was collected from the lottery agents, promising them to issue lottery tickets. It was also misappropriated. Later, Rupees 77 lakhs was remitted in the treasury. Both the accused by falsification of accounts, misappropriated a total sum of Rs.1,30,37,409/-. There is a further allegation that second accused had concealed this from the notice of the superior officers to screen both accused from action. On the basis of the final report filed, case was taken cognizance of and final report was filed. Summons was issued to the accused. Challenging the final report, the second accused has approached this court. 3. Assailing the final report, the learned counsel for the petitioner, contended that the records would show that, it was the petitioner herein who, on getting information about the misappropriation by the first accused, initiated proceedings against him and reported the matter to the higher authorities. He relied on Exts.P1 to P12 to support this contention. It was also contended that he cannot be burdened with any criminal liability in so far as the acts were committed by the first accused. First accused had given letters in writing admitting that he alone committed the misappropriation and nobody else was responsible for that. He relied on Exts.P1 to P12 to support this contention. It was also contended that he cannot be burdened with any criminal liability in so far as the acts were committed by the first accused. First accused had given letters in writing admitting that he alone committed the misappropriation and nobody else was responsible for that. It was also contended that even if there was any supervisory latches, he along with the Assistant District Lottery Officer and Superintendent was exercising supervisory control over the first accused and all of them should have also been charged for that. However, they were left without any allegation. The Vigilance confined to the petitioner and the first accused with the intention of roping in the second accused in the crime, committed by the first accused. It was also contended that the crime registered on the basis of the complaint submitted by the lottery agents was also clubbed with this and the investigation into both the crimes together was beyond the provisions of law and hence legally not sustainable. 4. Ext.P2 is a memo dated 3/2/2013 issued by the second accused to the first accused. It is regarding the huge difference in the accounts and the first accused was called upon to give his reply to the above memo. Ext.P8 clearly shows that it was pursuant to a vigilance verification conducted on 30/1/2013, in which they had verified the various registers and records maintained in the office. It was alleged therein that huge difference in the sale proceeds was found. Ext.A3 is the reply given by the first accused. In the reply he had stated that if there is any mistake, it may be due to the remittance in credit sale or bank guarantee remittance or due to mistake in entering in the computer. He requested for deputing experts from Keltron for assisting him in ascertaining the computer data. By Annexure.A4 date 7/2/2013, the second accused requested the state lottery director to arrange for experts from the Keltron for checking the computers and also to arrange internal auditors. 5. It seems that the second accused was on leave on 8/2/2013. On that day, a note was put up by the Assistant District Lottery Officer, who was in charge, mentioning that as per the cash book of that day, a deficit of 72,44,273/-was found. 5. It seems that the second accused was on leave on 8/2/2013. On that day, a note was put up by the Assistant District Lottery Officer, who was in charge, mentioning that as per the cash book of that day, a deficit of 72,44,273/-was found. She had informed that she would sign the cash book only after proper explanation was given for the deficit. Pursuant to the above letter, Annexure A6 memo was issued by the second accused to the first accused, calling upon him to produce the chalan for the amount liable to be deposited in the treasury. Annexure A7 is the reply given by the first accused, in which he had stated that the Assistant Lottery Officer had refused to verify the records and even the denomination of cash available. On detailed enquiry, it was found that there was a cash balance of Rs.57,91,000/-. He agreed to remit that amount same day itself. It seems that, he remitted that amount. However, it was informed by the second respondent by Annexure A8 to the first accused that he should remit the entire amount on 8/2/2013 and produce the chalan before the second accused. On 8/2/2013, Annexure A9 charge memo was issued by the second accused alleging that though the first accused had got treasury chalan signed from the second accused for Rs. 1,69,15,338/-, a sum of 57,58,840/-alone was remitted. Alleging that he had committed misappropriation of the balance amount of Rs. 1,1,56,498/-, a charge memo was issued to the first accused calling upon him to explain. By Anenxure 10 reply dated 8/2/2013, the first accused admitted that the shortage found was the amount which he had misappropriated during various dates, without informing and without the knowledge of any other officer. He undertook to remit the balance amount on or before 11/2/2015. Virtually, the reply indicates that he has taken over the entire liability by himself. Ultimately, Annexure 12 report dated 12/3/2013 was submitted by the second accused to the State Lottery Director detailing the entire communication and alleged that the first accused had committed misappropriation. Necessary action was called for against the first accused. 6. It seems that pursuant to that a preliminary enquiry was conducted by the deputy director and the finance officer. Annexure A13 is the report, which indicates that serious irregularities have to come light and the matter needs to be investigated. Necessary action was called for against the first accused. 6. It seems that pursuant to that a preliminary enquiry was conducted by the deputy director and the finance officer. Annexure A13 is the report, which indicates that serious irregularities have to come light and the matter needs to be investigated. It was pursuant to the above report that the complaint was laid before the Vigilance, which registered the crime. 7. Supporting the prosecution and the final report, the learned special Government Pleader for Vigilance referred to the detailed statement of facts submitted by the investigating officer. It was stated that, crime was registered on the basis of the vigilance enquiry conducted by VACB, Kollam unit, pursuant to a complaint filed by the officer in charge of the Director of State Lotteries, Thiruvananthapuram. Pending the investigation, few of the lottery agents had filed a complaint before the Kollam East Police alleging that the lottery agents had entrusted huge amounts with the first accused, who had assured to give the lotter tickets for the corresponding amount. Without giving the lottery tickets, he misappropriated a sum of Rs.81,33,965/-. Crime No.672/2013 under sections 406, 409 and 34 IPC was registered by the Kollam East Police Station. In the course of investigation, Vigilance Case No.VC1/2015 was clubbed with Crime No.672/2013 of the Kollam East Police Station and investigation continued. 8. It was stated by the investigating officer that during the course of investigation, the entire registers and records were verified. 37 witnesses were questioned and their statements were recorded. It was revealed that the second accused was the administrative head of the district lottery office, Kollam, during the relevant time. He was also the officer who was bound to sign the cash book and remit the cash in the bank, through District treasury, Kollam by a chalan. The chalans were signed by the second accused on every day at the closing of the office. Cash book was written by the first accused on behalf of the second accused. Normally, the junior superintendent and assistant district lottery officer were bound to verify the entries of the first accused in the cash book . Lastly, it would be placed before the second accused, to verify each and every entry with the draft subsidiary cash book. The next day, the cash balance was liable to be remitted in the treasury through chalan signed by the second accused. Lastly, it would be placed before the second accused, to verify each and every entry with the draft subsidiary cash book. The next day, the cash balance was liable to be remitted in the treasury through chalan signed by the second accused. During the course of investigation it was revealed that the first accused received the cash of sales of lottery tickets at the counter and kept under his custody in office chest. The chest would be opened and closed only with two connected cases . The custodian of those keys were the first and the second accused. Every sales entry and collection were to be entered in the computer system, which is the subsidiary cash book. The subsidiary cash book and the main cash book must tally. It was stated that, the first accused could not have committed any illegal activities, without the knowledge and conveyance of the second accused. The sales approved by the cashier would be checked by the second accused. It was alleged that normally the main cash book was written on the basis of the subsidiary cash book and after verification by the junior superintendent and the Assistant Lottery Officer, the cash book would be placed before the second accused. Investigating agency has collected materials to show that on the most of the days, the first accused had directed the producing of the cash book before the second accused, without producing before the junior superintendent and the assistant Lottery officer. The second accused signed the cash book in violation of mandatory procedure, it was alleged. Hence, there are some indications that the second accused did that fully knowing that it was not seen by the subordinate officers and fully knowing that it was improper. 9. In the course of investigation it was revealed that on 9/2/2013 and 11/2/2013, accused 1 and 2 had collected a sum of 8,13,3,965/-from the lottery agents promising that lottery tickets would be issued to them. However, he misappropriated the amount. The audit conducted by the officials of the directors had indicated that misappropriation of Rs.1,39,96,323/ was committed by both the accused. 10. A perusal of the statements produced by the prosecution in support of the allegations indicate that most of the witnesses have given statements supporting the prosecution case. However, he misappropriated the amount. The audit conducted by the officials of the directors had indicated that misappropriation of Rs.1,39,96,323/ was committed by both the accused. 10. A perusal of the statements produced by the prosecution in support of the allegations indicate that most of the witnesses have given statements supporting the prosecution case. The above materials indicate that there was violation of a procedure by the accused and records were signed by the second accused without the knowledge of the junior superintendent and the additional district lottery officer. The materials gathered by prosecution indicate that had the second accused been vigilant, he could have known that misappropriation was being conducted by the first accused. This covered a long period and it is likely that without the knowledge of the second accused this misappropriation, could not have occurred. Some statements indicate that the second accused had threatened the subordinate officers who had opposed the breach of procedure. There are some other materials which indicate that the second accused was actively privy to falsification of the records and misappropriation. It also indicates that the amount collected from the agents were not deposited in the treasury. 11. There is absolutely nothing to indicate that Junior Superintendent and the Additional District Lottery Officer have committed any illegal activities. On the other hand, it seems that even the admission by the first accused indicates misappropriation, and it was intended to save the second accused from the crime. The allegation that Vigilance case was improperly clubbed with the crime registered by the Kollam East Police Station is also without any basis. 12. Having considered the above materials. I find no reason to interfere in the final report which seems to be based on materials. Whether the prosecution is able to establish it through the witnesses and records is a matter of trial. It is too early at this stage to interfere with the final report in the light of the materials gathered by the investigating agency. I find no reason to quash Annexure-A1 final report. Accordingly, Crl.M.C. is without any merits and is dismissed.