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C.S. Madhusoodhanan @ Madhu v/s State of Kerala Represented by the Dy. S.P., VACB, Kottayam, Represented by The Public Prosecutor, High Court of Kerala, Ernakulam

    Crl.A. Nos. 946 & 948 of 2016

    Decided On, 13 July 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. UBAID

    For the Petitioner; K. Gopalakrishna Kurup, Senior Advocate, Akhil S. Vishnu, P.N. Sukumaran, Advocates. For the Respondents: C.S. Hrithwik, Public Prosecutor.



Judgment Text

1. The appellant herein challenges the conviction and sentence against him in C.C. Nos.153 & 154 of 2008 of the Special Court (Vigilance), Kottayam, under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act (for short 'the PC Act'), and under Sections 409, 465, 471 and 477A of the Indian Penal Code. He was the Senior Assistant in charge of Cashier of the Kerala State Electricity Board, Electrical Division Office, Ponkunnam, Thirssur, in 1999-2001. He faced prosecution on the allegation of criminal misappropriation of public funds amounting to criminal misconduct. The crime was registered on the complaint made by the then Executive Engineer, Kerala State Electricity Board, Division Office, Ponkunnam. He preferred the complaint on the basis of the report of the enquiry made by a subordinate officer.

2. The prosecution case is that during the period between November, 1999 and September, 2001, the accused dishonestly misappropriated an amount of Rs. 99,422/- from the funds of the KSEB, without making remittance of amount at the Bank. The said amount included the amount received at the KSEB office from different consumers, and also the amount meant to be disbursed to the employees by way of pension, leave surrender benefit etc.. The crime was initially registered at the Ponkunnam Police Station under Section 409 IPC as crime No.13 of 2002. Finding that the alleged instance of misappropriation and falsification of accounts would amount to criminal misconduct by a public servant as

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meant under Section 13(1)(c) of the PC Act, investigation was transferred to the Vigilance and Anti-Corruption Bureau, Kottayam. During investigation, the VACB found criminal misappropriation at two phases. The total period was split into two periods of misappropriation. The VACB found misappropriation of an amount of Rs. 37,434/- during the period between November, 1999 and October, 2000, and misappropriation of Rs. 61,988/- during the period between January, 2001 and September, 2001. Accordingly, in the same crime, the VACB submitted two final reports. On the final report relating to the period between November, 1999 and October 2000, cognizance was taken as C.C. No.153 of 2008, and on the basis of the other final report relating to the other period, cognizance was taken as C.C. No.154 of 2008. The two cases were tried jointly by the court below.

3. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 13(1)(c) read with Section 13(2) of the PC Act, and also under Sections 409, 465, 471 and 477A of IPC. During the joint trial of the two cases, the prosecution examined a total number of 16 witnesses, and proved Exts.P1 to P80 documents. Exts.X1 to X10 documents were also proved at the instance of the prosecution.

4. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and took up a contention that he had not misappropriated any amount, he does not know who exactly committed the misappropriation, and he cannot be made liable for the misappropriation done by others. The accused did not adduce any oral evidence in defence, but Exts.D1 to D4 were proved on his side.

5. On an appreciation of the evidence, the trial court found the accused guilty in both the cases by the common judgment dated 29.8.2016. On conviction in C.C. No.153 of 2008, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 50,000/- under Section 13(1)(c) read with Section 13(2) of the PC Act, to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- under Section 409 IPC, and to undergo rigorous imprisonment for one year each under Sections 465, 471 and 477A IPC. In C.C. No.154/2008 also he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 50,000/- under Section 13(1)(c) read with Section 13(2) of the PC Act, to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- under Section 409 IPC, and to undergo rigorous imprisonment for one year each under Sections 465, 471 and 477A IPC. The trial court also directed that the substantive sentences in the two cases shall run concurrently. Aggrieved by the judgment of conviction, the accused has come up in appeal.

6. When this appeal came up for final hearing the learned senior counsel for the appellant submitted that the whole prosecution case against the appellant is really doubtful, that the prosecution has not collected the very material evidence to prove forgery, which is said to be the basis of misappropriation, and the prosecution has no explanation for not examining the investigating officer who alone can explain the failure to collect the very material evidence. The learned senior counsel also submitted that it is quite probable that the alleged misappropriation was done at the Bank. He submitted that the pay-in-slips produced by the prosecution as material documents will show remittance of amount at the Bank, but the forgery or falsity of the seal alleged by the prosecution on these pay-in-slips is not satisfactorily and legally proved. The defence case is that money was in fact received at the Bank as evidenced by the payin-slips, but the misappropriation was committed at the bank. The amount involved in C.C. No.153 of 2008 is Rs. 37,434/-, and the amount involved in C.C. No.154 of 2008 is Rs. 61,988/-. The main documents relied on by the prosecution to prove the alleged forgery forming the basis of misappropriation are the Exts.P7, P9, X3, X5, P13, P17, P21, P22, P23, P25, P27, P29, P31 and P33 pay-in-slips.

7. PW1 is the main witness in this case. The whole prosecution is based on the report of the enquiry conducted by him, and the complaint was made by the Executive Engineer on the basis of this report of enquiry. Of course, it is true that PW1 and the other witnesses have given evidence proving the receipt of various amounts at the KSEB office during the period when the appellant was the cashier there. Exts.P38 to P41 are the documents proving assignment of duty to the appellant as cashier. PW5 has proved the Exts.P40 and P41 documents. Regarding these documents or the evidence of PW5, the defence has no dispute. PW1, PW3, PW4 and PW10 have also given evidence regarding the duty assigned to the appellant as cashier. The evidence given by these witnesses stands not discredited. Thus, it is a fact proved by evidence that as the Senior Assistant in charge of Cashier, the appellant was accountable for the money received and disbursed at the KSEB Office, Ponkunnam. The material witnesses have also proved the registers proving receipt of various amount at the office. The prosecution would allege that as the person in charge of cash transactions, the accused was bound to remit the amount at the Bank. The amount collected on a day would be remitted at the bank on the next day, and the copy of the pay-in-slips issued from the Bank would be affixed in the concerned registers. Receipt of money is well entered in the registers concerned, and there are pay-in-slips also affixed in the concerned registers. The prosecution case is that these pay-inslips are in fact forged pay-in-slips containing forged seal of the Bank, and the accused created these pay-in-slips to make the others believe that he had duly and promptly remitted the entire amount at the Bank, the next day itself.

8. To substantiate the allegation of misappropriation, the prosecution relies on the pay-in-slips alleged to have been forged by the accused. Ext.P6(a) proves the receipt of Rs. 11,781/-, and this was meant to be disbursed to PW7 as terminal leave surrender value. The Ext.P7 document will show disbursement of this amount. The evidence of PW7 is that she had not in fact received the amount. Ext.P8(a) entry proves receipt of Rs. 1,737/- meant for disbursement to one Muhammedkutty by way of pension. It was sent by money order, but it was returned. Ext.P9 pay-in-slip shows remittance of this amount at the bank on the next day. Ext.P10(a) entry in the R.D. receipt book shows receipt of Rs. 1,050/- as excess leave surrender granted in favour of one N.V. Varghese. Ext.X3 pay-in-slip shows remittance of this amount at the Bank on the next day. Ext.P11(a) entry in R.D. receipt shows receipt of Rs. 3,748/- meant for disbursement to one Raju. It was sent by money order, but it was returned at the office. Ext.X5 pay-in-slip will show payment of the amount at the bank on the next day. Ext.P12(a) entry in the R.D. receipt book shows receipt of Rs. 4,250/- by way of rent from one Galaxy Cable. Ext.P13 pay-in-slip shows remittance of the amount at the Bank. Ext.P14(a) entry in the R.D. receipt book shows receipt of Rs. 1,208/-, meant for disbursement as family pension to Valliyammal. Ext.P15 pay-in-slip shows remittance of the amount at the Bank. Ext.P16(a) entry in the R.D. receipt book shows receipt of Rs. 5,500/- from Asianet Communications, and Ext.P17 pay-in-slip shows remittance of the amount at the Bank, on the next day. Ext.P18(a) entry in the R.D. receipt book shows receipt of Rs. 8,160/- from Asianet Communications, and the pay-inslip shows remittance of the amount at the Bank on the next day. So, the total amount covered by the R.D. receipts mentioned above is Rs. 37,434/-, and there are pay-in-slips showing remittance of the amount at the Bank. The prosecution case is that receipt of all these amounts is seen entered promptly in the registers, and evidenced by R.D. receipts, but the pay-in-slips showing remittance at the Bank on the next day were falsely created by the accused to misappropriate all these amounts. It is here, proof regarding the above mentioned pay-in-slips assumes importance.

9. The definite case of the prosecution is that for the purpose of misappropriating money from the funds of the KSEB, the accused created some false vouchers and pay-in-slips. Thus, the very basis of the allegation of misappropriation is the alleged forgery. Exts.P7, P9, X3, X5, P13, P17, P21, P22, P23, P25, P27, P29, P31 and P33 are said to be the pay-in-slips falsely created by the accused, and all these pay-in-slips contain the seal of the Bank. If the seal of the Bank is genuine, it cannot be said that the slips were forged by the accused. Once, it is found that the seal on all these pay-in-slips is genuine, but the Bank registers do not show remittance of the amount at the Bank, the only finding possible would be that somebody in the Bank siphoned off the amount, or misappropriated it without entering in the Bank registers. So, the crucial question is whether the prosecution has proved that the seal of the Bank seen on the above mentioned pay-in-slips is false.

10. It is pertinent to note that the Investigating Officer did not take necessary steps and measures to seize the original seal of the Bank, or to have it compared with the seal affixed on the pay-in-slips. This infirmity can be explained only by the Investigating Officer. The prosecution has no explanation for the non-examination of the Investigating Officer. Of course, one of the Bank employees stated that it is not the original seal. If so, it is not known what exactly is the original seal of the Bank. It is a fact that some seal is seen on the pay-in-slips, and in appearance, it is the seal of the Bank. When the prosecution alleges that such a false seal was created or forged by the accused, the prosecution must prove that it is a forged seal, and for proving that it is a forged seal, the original seal itself must be got compared with the questioned seal. When such evidence is not there, it cannot be found that the seal found on the pay-inslips is false or forged.

11. Without proving the alleged forgery, the prosecution cannot prove the case of misappropriation. The prosecution case is that the money was in fact received by the accused as clerk, and to misappropriate the amount, he created some false vouchers and pay-in-slips. The case of the accused is that, he had promptly remitted the amount at the Bank, and he had also obtained proper pay-in-slips from the Bank. When such is the defence, and when the prosecution alleges use of forged vouchers, and forged pay-in-slips with forged seal to commit misappropriation, the prosecution is bound to prove the alleged forgery. When forgery is the basis of the misappropriation alleged, that forgery must be properly proved by scientific method. This is a case, where the alleged forgery can be proved by scientific method. But, it was not done by the Investigating Officer, for reasons known to him alone. When the Bank officials say that the seal seen on the pay-in-slips is not the original seal of the Bank, it is not known what exactly is the original seal. To judge whether it is genuine or forged, both the seals must be before the court, and there must also be scientific evidence of comparison by an expert. In the absence of such scientific evidence, which the prosecution could have collected and adduced, the court will have to find that the allegation of forgery, and also the allegation of misappropriation are doubtful. As already observed by me, if the seal on the pay-in-slips is genuine, or if it is the seal of the Bank, the inference possible is that money was received at the Bank, and if the money is not seen entered in the Bank registers, someone inside the Bank must be responsible. It is here, the prosecution case becomes doubtful. When things are doubtful, the benefit of such doubts must go to the accused. In cases where, scientific evidence is possible to prove the prosecution case, it must be the concern of the prosecution to collect all such evidence, and present things before the court for a just decision. In this case, the Investigating Officer failed to collect the required evidence, and he was not examined in court. I find that in the absence of proper and scientific evidence proving the alleged forgery, the accused cannot be found guilty. So long as forgery is not properly and legally proved, the accused cannot be found guilty of misappropriation because, forgery is alleged by the prosecution as the basis of the alleged misappropriation.

12. The amount involved in these cases is Rs. 99,422/-. It appears that the amount was later remitted. Of course, it is true that later payment will not condone the act of misappropriation committed by the person in charge of accounts. It is not definite whether payment was made by the accused or somebody else on his behalf. Anyway, in the absence of legal evidence proving the required elements, and also in view of the doubts surrounding the prosecution allegation of forgery, I find that the accused is entitled for acquittal.

In the result, these appeals are allowed. The appellant is found not guilty of the offences under Section 13(1) (c) read with Section 13(2) of the Prevention of Corruption Act, and under Sections 409, 465, 471 and 477A of the Indian Penal Code, and the accused is acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in C.C. Nos.153 and 154 of 2008 of the court below will stand set aside, and the accused will stand released from prosecution.
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