Kerala High Court
P.N. Mohanan Nair vs State Of Kerala on 30 April, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 13TH DAY OF NOVEMBER 2015/22ND KARTHIKA, 1937
CRL.A.No. 980 of 2005 ( )
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AGAINST THE JUDGMENT IN CC 22/2002 of ENQUIRY COMMR.& SPECIAL
JUDGE,THRISSUR DATED 30-04-2005
APPELLANT/ACCUSED:
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P.N. MOHANAN NAIR, S/O. NARAYANAN,
FORMER PEON, SUB REGISTRY, VAZHOOR
PADINJAREMURIYIL HOUSE, AYMANAM VILLAGE, KOTTAYAM.
BY ADV. SRI.P.RAVINDRA BABU
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REP. BY DEPUTY
SUPERINTENDENT OF POLICE, V.A.C.B., KOTTAYAM
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2015,
ALONG WITH CRA. 981/2005, CRA. 982/2005, THE COURT ON 13-11-2015,
DELIVERED THE FOLLOWING:
P.UBAID, J.
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Crl.A Nos.980, 981 & 982 of 2005
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Dated this the 13th day of November, 2015
J U D G M E N T
These three appeals arose from the common judgment of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C No.21/2002, C.C No.22/2002 and C.C. No.23/2002. The appellant is the same in the three appeals. He was a Peon in the Sub Register's office, Vazhoor during 1995-1996. On the allegation that, he committed dishonest misappropriation of a huge amount of 92,225/- from public funds, without making remittance in the Sub Treasury, as instructed and directed by the Sub Registrar, and that, for making the Sub Registrar believe that he had made remittance, he created false chalans showing remittance of the said amount of 92,225/- the appellant faced prosecution on three final reports submitted by the Vigilance and Anti-Corruption Bureau (VACB), Kottayam before the trial court. The VACB registered a crime on the complaint of the then Sub Registrar, who Crl.A Nos. 980, 981 & 982 of 2005 2 detected the dishonest misappropriation and forgery committed by the Peon. As regards the misappropriation made from 7.7.1992 to 29.12.1992, the VACB submitted final report as 'A' charge on which the learned trial judge took cognizance as C.C. No.21/2002, as regards the dishonest misappropriation committed during 21.10.1994 to 31.7.1995, the VACB submitted final report as 'B' charge on which the learned trial judge took cognizance as C.C No.22/2002, and as regards the dishonest misappropriation committed during the period from 12.12.1995 to 30.8.1996, the VACB submitted final report as 'C' charge on which the learned trial court took cognizance as C.C No.23/2002. The oral and documentary evidence in the three cases being common, the learned trial judge tried the three cases jointly, and common evidence was recorded.
2. The accused appeared before the trial court in the three cases and pleaded not guilty to the charge framed against him under Sections 13(2) r/w 13(1(c) and 13(1)(d) of the Prevention of Corruption Act (for short 'the P.C Act') and under Sections 409, 465 and 471 of the Indian Penal Crl.A Nos. 980, 981 & 982 of 2005 3 Code.
3. The prosecution examined 31 witnesses and proved Exts.P1 to P80 documents. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances, and projected a defence that the alleged misappropriation might have been committed by the Sub Registrar himself. The accused did not adduce any evidence in defence. On an appreciation of the evidence adduced by the prosecution, the trial court found the accused guilty in all the three cases.
4. On conviction in C.C No.21/2002, the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 15,000/- under Section 13(2) r/w 13(1)(c) and 13(1)(d) of the P.C Act, to undergo rigorous imprisonment for one year under Section 13(2) r/w 13(1)(d) of the P.C Act, to undergo rigorous imprisonment for one year under Section 409 of the Indian Penal Code, and to undergo rigorous imprisonment for three months each under Sections 465 and 471 of the Indian Penal Code. Crl.A Nos. 980, 981 & 982 of 2005 4
5. On conviction in C.C. No.22/2002, the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 30,000/- under Section 13(2) r/w 13(1)(c) of the P.C Act, to undergo rigorous imprisonment for one year under Section 13(2) r/w 13(1)(d) of the P.C Act, to undergo rigorous imprisonment for one year under Section 409 of IPC, and to undergo rigorous imprisonment for three months each under Sections 465 and 471 of IPC
6. On conviction in C.C. No.23/2002, the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 50,000/- under Section 13(2) r/w 13(1)(c) of the P.C Act, to undergo rigorous imprisonment for one year under Section 13(2) r/w 13(1)(d) of the P.C Act, to undergo rigorous imprisonment for one year under Section 409 of IPC and to undergo rigorous imprisonment for three months each under Sections 465 and 471 of IPC, by judgment dated 30.4.2005. The substantive sentences in the three cases are directed to run concurrently. Aggrieved by the judgment of conviction in the three cases, the accused has come up in appeal.
Crl.A Nos. 980, 981 & 982 of 2005 5
7. Crl.A No.980/2005 is brought against the judgment of conviction in C.C No.22/2002, Crl.A No.981/2005 is brought against the judgment of conviction in C.C No.23/2002 and Crl.A No.982/2005 is brought against the judgment of conviction in C.C. No.21/2002.
8. During investigation, the appellant was removed from service. During trial, the accused projected a defence that he was not in fact entrusted with any money by the Sub Registrar as alleged by the prosecution, and if at all any amount was misappropriated dishonestly, it might have been committed by the Sub Registrar. No evidence was adduced by the accused to prove his defence case, and the defence could not bring out anything, or even the weakest circumstance, during the cross examination of the Sub Registrar to probabilise such a case. The learned counsel for the appellant submitted that the prosecution does not have any satisfactory evidence in this case to prove entrustment which is the essential element of the offence under Section 409 IPC and Section 13(1)(c) of the P.C Act, and that there is absolutely no material to prove that the alleged Crl.A Nos. 980, 981 & 982 of 2005 6 misappropriation was made by the accused. On the other hand the learned Public Prosecutor submitted that the prosecution has clear and convincing evidence to prove that the appellant was in fact entrusted with money on different occasions, and that he misappropriated the entire amount without making remittance in the treasury, and for the said purpose he forged some treasury chalans.
9. The prosecution mainly relies on the evidence given by the Sub Registrar and the other staff of the Sub Registrar's office, and also the officers of the Sub Treasury. The Sub Registrar and the Head Clerk of the Sub Treasury have given definite and consistent evidence proving entrustment of money which is the essential element of the offences alleged, and the officers of the Sub Treasury have given convincing evidence that the disputed chalans in this case produced by the accused before the Sub Registrar to show remittance of money in treasury, are bogus chalans, and that the amount covered by these chalans was not in fact remitted in the treasury. They have given evidence on the basis of entries in the treasury registers, and they Crl.A Nos. 980, 981 & 982 of 2005 7 affirmed that the seal on the bogus chalans is not that of the Sub Treasury. The mode of dishonest misappropriation alleged in the three cases is by short remittance. On detection of dishonest misappropriation, the Sub Registrar made a complaint on which the VACB registered a crime, and on investigation, the VACB seized the necessary documents and registers proving the alleged forgery and the alleged short remittance. On an examination of the materials I find that the defence does not in fact have any dispute regarding the documents in this case, proving entrustment and misappropriation, and that is why the defence projected a defence, with the full knowledge that it would not succeed, that the alleged misappropriation might have been done by the Sub Registrar.
10. In C.C No.21/2002, the period of misappropriation is from 7.7.1992 to 29.12.1992, and the amount of misappropriation is 12,913/-. That the accused was Peon of the Sub Registrar Office, Vazhoor is proved by the Sub Registrar and the other officers of the Sub Registrar's office, and also the documents including the attendance register. It Crl.A Nos. 980, 981 & 982 of 2005 8 stands proved that the accused had been Peon in the Sub Registrar's office, Vazhoor from 1.1.1992 to 31.12.1996. Exts.P3, P5, P6 and P8 are the bogus chalans involved in C.C No.21/2002. Ext.P3 chalan dated 6.7.1992 is for an amount of 3,089/-, Ext.P5 chalan dated 12.8.1992 is for 1,509/-, Ext.P6 chalan dated 3.11.1992 is for 3,956/-, Ext.P7 chalan dated 13.11.1992 is for an amount of 3,274/-. Entrustment of the amount covered by these chalans is satisfactorily and convincingly proved by PW2, the Sub Registrar who made such entrustments, and also by the evidence of PW3, the Head Clerk of the Sub Registrar's office. PW3 is specific about the entrustment of 1,085/-, covered by Ext.P8 chalan dated 29.12.1992. PW4 was the Upper Division Clerk at that time in the Sub Registrar's Office. His evidence is that the original chalans for remittance in the treasury were prepared by him, but Exts.P3, P5, P6 and P7 chalans are not the original chalans prepared by him. PW1 and PW2 have proved the corresponding Exts.P4(a), P4(b), P4(c), P4(d) and P4(e) entries in the Ext.P4 remittance register showing receipt of money by the Peon as entrusted by the Sub Crl.A Nos. 980, 981 & 982 of 2005 9 Registrar. These two material witnesses identified the writings and signature of the accused in the Exts.P4(a), P4
(b), P4(c), P4(d) and P4(e) entries, acknowledging receipt of the amount meant for remittance in the treasury. The defence could not bring out anything to suspect the evidence of the witnesses, proving entrustment of the amount covered by these entries. PW3 has also proved Exts.P9(a), P9(b), P9(c), P9(d) and P9(e) entries made by him in the cash book, relating to the transaction. Ext.P4(d) entry relating to Ext.P7 chalan made by the accused and also the Ext.P9(d) entry stand well proved by the evidence of PW5 also.
11. PW7 is the Sub Treasury Officer and PW8 is the Treasurer of the Sub Treasury, Pampady. They have given clear evidence that the amount covered by the Exts.P3, P5, P6, P7 and P8 chalans was not in fact remitted in the treasury, and that these are not the chalans issued from the treasury. The Sub Treasury Officer gave evidence on the basis of the Ext.P16 register and also the other registers in the treasury. PW7 and PW8 are definite that on verification Crl.A Nos. 980, 981 & 982 of 2005 10 of the registers including the remittance register, they could not find remittance of the amount covered by Exts.P3, P5, P6, P7 and P8 chalans. When entrustment of the amount covered by these chalans is proved by the Sub Registrar, the Head Clerk, and the other Officers of the Registrar's office, and when non remittance in the treasury is proved well by the officers of the Sub Treasury, the only finding possible is that the said amount was dishonestly misappropriated by the accused without making remittance in the treasury. Thus I find that the alleged misappropriation in C.C No.21/2002 stands well proved by the prosecution.
12. In C.C 22/2002, the period of misappropriation is from 21.10.1994 to 31.07.1995 and the amount misappropriated is 28,978/-. The amount alleged to have been misappropriated by the accused is the amount covered by Exts.P10, P11, P28, P29, P32, P33, P34 and P35 chalans produced by the accused before the Sub Registrar. PW15, the Sub Registrar, then in office has given convincing and definite evidence proving entrustment of the amount covered by these chalans. PW16, the Head Clerk has also Crl.A Nos. 980, 981 & 982 of 2005 11 given evidence proving the said entrustment. The amount covered by Ext.P10 chalan is 4,029/-, the amount covered by Ext.P11 chalan is 1,201/-, the amount covered by Ext.P28 chalan is 3,015/-, the amount covered by Ext.P29 chalan is 2,799/-, the amount covered by Ext.P32 chalan is 4,982/-, the amount covered by Ext.P33 chalan is 5,985/-, the amount covered by Ext.P34 chalan is 3,502/- and the amount covered by Ext.P35 chalan is 3,465/-. Thus the total amount is 28,978/-. Ext.P12 (a) to P12 (i) are the entries in the Ext.P12 remittance register made by the accused, acknowledging receipt of the amount entrusted. These entries also stand well proved by PW15, the Sub Registrar. He is definite that Ext.P12 (a) to P12 (i) entries were made by the accused himself in his own handwriting that he received the amount entrusted for remittance in the treasury. PW16, the Head Clerk also proved those entries made by the accused, and she well identified the signature of the accused in the Ext.P12 remittance register. She also proved the corresponding entries in the Ext.P14 cash book. Ext.P14 (b) to Ext.P14 (h) Crl.A Nos. 980, 981 & 982 of 2005 12 are the corresponding cash book entries.
13. PW7, the Sub Treasury Officer, PW8 the Sub Treasury Officer-in-charge during the period from 1992-1996 and PW18, another Sub Treasury Officer have given evidence that on verification of the registers in the treasury, they could find that the amount covered by Ext.P10, P11, P28, P29, 32, 33,34 and 35 chalans was not remitted in the Sub Treasury. All the Sub Treasury Officers stated that these chalans are not true and genuine chalans issued from the Treasury. Thus their evidence will satisfy the court that these are bogus and forged chalans made by the accused for production before the Sub Registrar, to make it appear that he had promptly remitted the amount in the treasury. The defence could not bring out anything in the cross- examination of the Sub Treasury Officers regarding non- remittance in the Sub treasury. Exts.P10, P11, P28, P29, 33, 33, 34 and 35 chalans produced by the accused before the Sub Registrar are proved to be bogus chalans. These are not the chalans issued from the the Sub Treasury. Entrustment of the amount covered by these chalans stands Crl.A Nos. 980, 981 & 982 of 2005 13 proved by the evidence of the Sub Registrar and the Head Clerk. Thus, on an appreciation of the evidence I find that in C.C No.22/2002 also, the prosecution has well proved the case against the accused, that he had misappropriated an amount of 28,978/- from public funds by non-remittance in the Treasury, and that for the said purpose, he created bogus chalans, identified and proved as bogus by the Sub Treasury Officer. I find that entrustment which is the essential element of the offence under Section 409 I.P.C stands well proved by the evidence of the Sub Registrar and the Head Clerk, and that dishonest misappropriation which is the essential element of the offence punishable under Section 13 (1) ( c) of the Act stands well proved by the evidence of PW7, PW8 and PW18.
14. The period of misappropriation alleged in C.C 23 of 2002 is from 12.2.1995 to 30.8.1996, and the amount misappropriated is 50,334/-. The chalans involved in this case are Exts.P13 and P36 to 42. PW15, the Sub Registrar has given definite evidence proving entrustment of the amount covered by these chalans. Ext.P13 dated Crl.A Nos. 980, 981 & 982 of 2005 14 12.12.1995 is for an amount of 7,561/-. The amount covered by Ext.P36 chalan dated 15.1.1996 is 3,269/-, Ext.P37 chalan dated 4.3.1996 is 10,208/-, Ext.P38 chalan dated 29.3.1996 is 7549/-, the amount covered by Ext.P39 chalan dated 17.4.1996 is 1,569/-, Ext.P40 chalan dated 6.5.1996 is 8,519/-, the amount covered by Ext.P41 chalan dated 24.6.1996 is 1,275/-, and the amount covered by Ext.P42 chalan dated 30.8.1996 is 10,384/-. Thus the total amount is 50,334/-.
15. PW15, the Sub Registrar has proved the entrustment of the amount covered by Exts.P30 and P36 chalans and also the corresponding Exts.P12 (c ) and P12 (j) entries made by the accused acknowledging receipt of the said amount for remittance in the Treasury. Entrustment of the amount covered by Ext.P30 chalan is proved by PW6 also. PW6 also proved the Ext.P12 (c ) and (j) entries made by the accused. PW16, the Head Clerk also proved the entrustment of the amount covered by Exts.P37 and P40 chalans, and also the Ext.P12(k) and (n) corresponding entries made by the accused acknowledging receipt of the Crl.A Nos. 980, 981 & 982 of 2005 15 said amount. Ext.P15 (c ) and (f) corresponding entries in the cash book are also proved by PW16, thus proving entrustment of the amount covered by the two chalans. There is absolutely nothing to disbelieve the evidence of PW15 and PW16, and the defence could not bring out anything in their cross-examination to probabilise otherwise.
16. PW17, another Sub Registrar, who was in office from 18.3.1996 to 27.11.1997, has given clear evidence proving the entrustment of the amount covered by Exts.P38, P39, P41 and P42 chalans. He also proved the corresponding P12 (m) P12 (n), P12 (o) and P12 (p) entries made by the accused in the remittance register, acknowledging receipt of the amount. PW16 stated that the original chalans for the amount covered by Exts.P38, P39, P41, and P42 chalans were prepared by her and the amount covered by these chalans was entrusted to the accused for remittance in the Treasury. She also proved the Ext.P12 (m) to (p) entries made by the accused in the remittance register, acknowledging receipt of the amount covered by the chalans. As regards remittance in the Treasury, the Crl.A Nos. 980, 981 & 982 of 2005 16 Treasury Officers examined by the prosecution (PW8 and PW18) have given convincing evidence that on verification of the registers kept in the Sub Treasury, they could find that the amount covered by disputed chalans is not remitted in the Treasury. Thus, non-remittance of the amount received by the accused stands well proved by the evidence of the Treasury Officers also. PW20 is the Treasurer examined by the prosecution. This witness has also given evidence that the amount covered by the disputed chalans is not seen remitted in the Treasury. As regards the chalans, all the three Treasury Officers are consistent that these are not the chalans issued from the Treasury. Evidence proves well that the said amount was dishonestly misappropriated by the accused by non-remittance.
17. Thus, I find that in C.C No.23 of 2002 also, the prosecution case stands well proved against the accused, that he was entrusted with an amount of 50,334/- on different occasions by the Sub Registrar, receipt of the amount was promptly acknowledged by him, but he dishonestly misappropriated the said amount without Crl.A Nos. 980, 981 & 982 of 2005 17 making remittance in the treasury.
18. The defence projected by the accused during trial is that the alleged misappropriation might have been committed by the Sub Registrar. The defence could not bring out any material to probabilise such a defence. On the other hand, all the Treasury Officers and the Head Clerk stood firm to their versions in evidence proving entrustment of the amount and also proving misappropriation by the accused. There is clear evidence that bogus chalans were produced by the accused before the Registrar. The defence projected by the appellant is unacceptable and unbelievable, that on different occasions, the three Sub Registrars misappropriated huge amount from public funds. The accused does not have any sort of material to probabilise such a defence, or even to suspect anything about the Sub Registrars examined by the prosecution. I find that the defence has miserably failed to prove or probabilise the defence projected during trial that the alleged misappropriation was not done by the accused, or it might have been done by one or the other Sub Registrar. Crl.A Nos. 980, 981 & 982 of 2005 18
19. As discussed in the foregoing paragraphs, I find that the prosecution case against the appellant in C.C 21/02, C.C22/02 and 23/2002 stands well proved by convincing and satisfactory evidence. The accused does not have any acceptable or consistent defence. Whatever be the defence, there is no material to probabilise such defence. I find that the conviction against the appellant in the three cases is only to be confirmed in appeal.
20. As regards the sentence also, I do not find any scope for interference. The minimum sentence prescribed for the offence under Section 13 (2) of the Act as on the date of offence was imprisonment for one year.
In the result, this Court is reasoned to dismiss the Crl.A Nos.980/2005, 981/2005 and 982 of 2005 confirming the conviction and sentence against the appellant in C.C.21/2002, 22/2002 and 23/2002 of the court below.
Sd/-
P.UBAID JUDGE ma /True copy/ P.S to Judge