Kerala High Court
T.Balakrishnan Master vs K.M.Ramachandran on 5 May, 2012
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935
Crl.Rev.Pet.No. 1952 of 2013 ()
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AGAINST THE JUDGMENT IN CRL.A. 665/2011 of SPECIAL ADDL.
SESSIONS COURT, (SPL.COURT FOR TRIAL FOR MARADU CASES)
KOZHIKODE DATED 05-05-2012
AGAINST THE JUDGMENT IN CC 127/2004 of J.M.F.C.-V,
KOZHIKODE DATED 08-12-2010
REVISION PETITIONER/APPELLANT/DE-FACTO COMPLAINANT:
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T.BALAKRISHNAN MASTER,
S/O.GOPALAN NAIR, NELLULI HOUSE, MORIKKARA P.O.,
KAKKODI, KOZHIKODE DISTRICT.
BY ADV. SMT.BINDU GEORGE
RESPONDENT/RESPONDENT/ACCUSED/STATE:
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1. K.M.RAMACHANDRAN,
S/O.NARAYANA MENON, HEAD MASTER,
GANAPATH A.U.O SCHOOL,
RAMANATTUKARA-673 633.
2. STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
FAROKE POLICE STATION, THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.K.JAJU BABU
R1 BY ADV. SMT.M.U.VIJAYALAKSHMI
R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 29-10-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
K. HARILAL, J.
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Crl.R.P. No.1952 of 2013
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Dated this the 29th day of October, 2013
ORDER
The revision petitioner is the complainant in C.C.No.127/04 on the files of the Judicial First Class Magistrate's Court-V, Kozhikode, as well as the appellant in Crl. Appeal No.665/11 on the files of the Court of Session (Special Additional Sessions Judge, (Marad Cases), Kozhikode. The above complaint was filed under Section 190(a) read with Sec.200 of the Code of Criminal Procedure against the 1st respondent/accused herein as C.M.P.No.3862/01 alleging the offences punishable under Secs.166, 167 and 466 of the Indian Penal Code.
2. The gist of the prosecution allegation against the accused is as follows: The revision petitioner was a Teacher in the Ramanattukara Ganapath A.U.P. School. The accused was the Head Master of that school. The revision petitioner retired from service on 31/3/2001. Before his retirement, he had submitted his pension book Crl.R.P. No.1952 of 2013 2 to the accused. The accused made corrections in the pension book and service book with regard to the total service of the revision petitioner and also the amount of pension and gratuity payable to him. The accused made such corrections in the pension book of the revision petitioner in violation of the order of this Court with the intention to cause injury and loss to the revision petitioner.
3. The above complaint was forwarded to the S.H.O., Feroke Police Station, for investigation under Sec.156(3) of the Cr.P.C. On the basis of that complaint, Crime No.199/01 of the Feroke Police Station was registered against the accused. C.W.12 - Assistant Sub Inspector of Police conducted the preliminary investigation of the case. C.W.13 - Sub Inspector conducted the further investigation of the case and filed charge sheet against the accused for the offences punishable under Secs.166, 167 and 466 of the IPC and the trial court framed the charges against the accused for Crl.R.P. No.1952 of 2013 3 the said offences and the accused faced trial.
4. Thereupon, the prosecution examined P.Ws.1 to 10 and marked Exts.P1 to P19. No oral evidence was adduced by the accused; but Exts.D1 and D2 were marked on his side. After the trial, the learned Magistrate found the accused not guilty of the said offences and acquitted him. Though the revision petitioner had preferred the above Criminal Appeal, after re-appreciating the evidence on record, the learned Sessions Judge also confirmed the verdict of acquittal and confirmed the judgment passed by the trial court. This revision petition is filed challenging the concurrent findings of acquittal of the accused.
5. The learned counsel for the revision petitioner submits that the acquittal made by the court below are improper, illegal and against the law, facts and procedure. The courts below miserably failed to appreciate the evidence in its correct legal perspective. The evidence of P.Ws.1 to 10 unequivocally proves the guilt of the Crl.R.P. No.1952 of 2013 4 accused. The evidence of prosecution witnesses remains unchallenged even after long cross-examination by the defence counsel. There is no reason to disbelieve the evidence of P.W.3 regarding the fact that the accused had made correction and manipulations in the service book without any authority.
6. Per contra, the learned counsel for the 1st respondent/accused advanced arguments to justify the impugned judgments under challenge. In view of the submissions at the Bar, the question to be considered is whether there is any illegality or impropriety in the judgment passed by the court below acquitting the accused. Put it differently, the question is whether the prosecution succeeded in proving the charge against the accused beyond reasonable doubt. The main point to be considered is whether the prosecution has proved the charge that the accused being a public servant prepared the pension book of P.W.1 incorrectly intending thereby to cause injury to the complainant.
Crl.R.P. No.1952 of 2013 5
7. Going by the judgment it could be seen that certain facts are admitted. The Revision Petitioner was teacher of the Ramanattukara Ganapath A.U.P school and the accused was the Head master of that school. The revision petitioner retired from service on 31/03/2001. He was under suspension from 23/08/1995 to 10/08/1997. As per the order of the Government, he was reinstated in service and the same was challenged by the Manager in OP No.14798 of 1997. In that Writ Petition this court held that the revision petitioner will not be entitled salary for the above said suspension period but for the purpose of seniority and all other service benefits that period will be calculated. Against that judgment the revision petitioner had preferred Writ Appeal No.2036 of 1999. In that Writ Appeal, this Court held that the punishment to be awarded if any, on the appellant shall be at the discretion of the concerned authority ie. Manager of the school. Pursuant to the judgment passed in Writ Appeal, the Manager of the school vide Ext.D1 Crl.R.P. No.1952 of 2013 6 ordered that suspension period of the appellant will not be treated as eligible leave and that period will not be counted for pension purposes. Ext.D1 order was passed on26/07/2000. However as per D2 order dated 4/12/2000 the Assistant Educational Officer Feroke declined to ratify the penalty imposed on the Revision Petitioner by the Manager as per Ext.D1 order dated 26/07/2000. But it is pertinent to note that meanwhile the revision petitioner had submitted his pension book to the accused in which entries had been made showing the suspension period also as eligible period for pension and gratuity. On 24/10/2000 the accused made corrections in the pension book deducting the period of suspension from the eligible period for calculating the pension of the appellant and for counting the pension and gratuity on the basis of the reduced period and forwarded pension book to the A.E.O.
8. In view of the undisputed facts the next point to be considered is whether the accused had made Crl.R.P. No.1952 of 2013 7 corrections in the Pension and service book of the Revision Petitioner incorrectly with an intend to cause injury to the Revision Petitioner. In defence, the accused has produced Exts.D1 and D2. D1 is the order dated 26/07/2000 passed by the Manager of the school stating that suspension period of the appellant will not be treated as eligible leave and that period will not be counted for pension purposes. No doubt, as the Headmistress of the school under the supervision of the manager the accused is bound to implement the said order forthwith and the order has come into force on that day itself. It follows that, it is incumbent upon the accused to make necessary corrections in the pension book and the service book as per the order passed by the Manger. It is not disputed that Ext.D2 order was passed by the Assistant Educational Officer Feroke, declining to ratify the order passed by the Manger, on 4/12/2000 only. It is also undisputed that the corrections was made in a period in between 26/07/2000 and 4/12/2000. Therefore, it could be seen that even if Crl.R.P. No.1952 of 2013 8 the corrections were admitted at its entirety as such, those corrections were made in accordance with law and it cannot be held that those corrections are incorrect and made with an intend to cause injury to the Revision Petitioner. Therefore, I also confirm the concurrent findings of the court below that the prosecution miserably failed to prove the charge against the accused beyond reasonable doubt.
9. The learned counsel for the revision petitioner submits that the direction in Ext.P1 to count the suspension period for pensionary and other service benefits was not set aside in the judgment in Writ Appeal No.2036 of 1999 therefore, the said direction of the learned single judge was inforce at the time of making corrections. I am unable to accept the said argument on various grounds. Such an argument was not raised either in the trial court or in the appellate court. So the courts below has no opportunity to consider these arguments. Secondly, going by the judgment passed by the learned Crl.R.P. No.1952 of 2013 9 single Judge in OP No.14798 of 1997 and also judgment passed in Writ Appeal No.2836 of 1999 filed against the Writ Petition, I am of the opinion that though it is not specifically stated that the order passed by the single Judge, to compute the suspension period for service benefits is set aside, by the order conferring absolute power to impose punishment to the Manager, the earlier direction passed by the learned Single Judge stood set aside impliedly and the absolute discretionary power was conferred to the Manager by the Division Bench. The order passed by the Manager in exercise of the discretionary power conferred to him by the Division bench of this court was in force at the time of making the correction in the Service book and Pension book. There had been no mala fides or dishonest intention, in making such corrections.
10. Needless to say the jurisdiction of this court in a Revision against acquittal concurrently held by the courts below is very limited and even if another view is also Crl.R.P. No.1952 of 2013 10 possible, this Court cannot substitute that view. In revision re-appreciation of evidence is impermissible unless it is shown that the findings arrived at by the inferior courts could not have been formed on the materials placed or it is so perverse and unacceptable. Here I do not find any perversity in the appreciation of evidence. But in the instant case I also concur with the findings of the court below. This Revision is meritless.
This Revision Petition is dismissed accordingly.
Sd/-K.HARILAL JUDGE NAN/MJL