Kerala High Court
State Of Kerala vs Sebastian Jacob on 4 February, 1991
Equivalent citations: 1991CRILJ2636
JUDGMENT S. Padmanabhan, J.
1. Appeal is by the State challenging the acquittal of the first accused. In C.C. No. 54 of 1987, he was tried by the Enquiry Commissioner and Special Judge, Thiruvananthapuram along with the second accused for having committed criminal misconduct as defined in Section 5(1)(d) and made punishable under Section 5(2) of the Prevention of Corruption Act in furtherance of their common intention. During trial, second accused died and the charge against him abated. Respondent was acquitted.
2. Respondent was working as Secretary "in the Taluk Co-operative Consumer Store Limited, Chenganacherry (the Store) on deputation. Second accused was the Business Manager under him. On 7-2-1983, respondent issued Ext. P8 to the second accused authorising him to get 100 quintals of boiled rice from the Chenganacherry unit of the Civil Corporation (Corporation) on behalf of the Store for distribution to the card-holders through Maveli Stores. Though the Store had no funds, the amount of Rs. 27,500/- representing price of rice was remitted that day itself on behalf of the Store to the credit of the Corporation in the Chenganacherry branch of the Canara Bank (Bank). Respondent managed to create Ext. P6 receipt that day itself to the effect that the amount was advanced on loan by one K.M. Hussain. Rice was taken delivery. But it was not brought to the Store or entered in the accounts. It was sold and the proceeds appropriated. Prosecution case is that these acts were done in furtherance of the common intention of the two accused.
3. Plea of the respondent was that he is innocent. He stated thus. He gave Ext. P8 authorisation to get the rice. Even though funds were not available in the Store, the second accused, as is the usual practice, managed to get it as loan from one K.M. Hussain and remitted the same in the Canara Bank. Through PW 4 cashier, he prepared Ext. P 6 receipt in favour of Hussain for that amount. Then the second accused came back with Ext. P8 and said that delivery of rice was not taken. Hence Ext. P6 was cancelled. The fact that delivery of rice was taken by the second accused became known to him only when he was questioned in the board meeting on 12-2-1983. He had no common intention with the second accused and he is not guilty of any misconduct.
4. Prosecution examined 18 witnesses and proved 40 documents. There is no defence evidence. Grounds of acquittal are mainly:
(a) though the charge states that rice was taken delivery on 7-2-1983, actual delivery was only on 8-2-1983;
(b) there is nothing to show that second accused took delivery of rice with the knowledge of first accused or that first accused came to know of it till 12-2-1983;
(c) prosecution did not prove what happened to the rice; and
(d) if at all there is only dereliction of duty on the part of the first accused, which cannot be penalised without anything more.
5. After hearing both sides and perusing the evidence, I was not able to persuade myself to accept the reasonings and conclusions of the Special Judge, in spite of the limitations in the matter of interference in an appeal against acquittal. I am of the opinion that the conclusion of innocence in relation to the evidence is perverse.
6. PW 1 was the president of the Store and PW 8 was one of the directors of the Board. Their evidence shows that the misconduct became known through an anonymous phone call on 12-2-1983 when the board was holding its meeting. Respondent in the board meeting at first denied his complicity and went out. Second accused was then called. Though he at first denied, he subsequently admitted liability. Thereafter the respondent also came and admitted everything. Ext. P2 statement was thereafter given by the respondent and Ext.P 3 by the second accused. When the respondent was asked to give a more detailed statement, he threw away Ext. P2 after tearing it to two pieces. That was taken and pasted by PW 1. These facts, which came out from the evidence of PWs 1 and 8, were disputed by the respondent only in some respects. According to him, Ext. P2 was extracted from him inside a closed room by inducement and threat and it happened to be torn in an attempt to forcibly take it from him.
7. On the basis of the evidence of some of the prosecution witnesses, including PWs 1, 4 and 8, that Exts. P2 and 3 were written inside a close room, where the board meeting was being held, and that too after warnings in loud angry tone, Special Judge accepted the defence version that Ext. P2 was the result of inducement, threat or promise. I do not agree. No inducement, threat or promise is discernible from the evidence. It is true that PWs 1 and 8 admitted having questioned the accused in any angry loud tone when they denied involvement. But they only said that they warned the accused with the possible consequences and requested them to save the situation for themselves also. Anyhow, that aspect is only of academic importance, in view of the evidence and the stand taken by the respondent. Even if Ext. P2 is ignored as hit by Section 24 of the Evidence Act, the other items of evidence are more than sufficient.
Further, Ext. P2 does not contain anything that much incriminating.
8. Fact that the second accused got delivery of the rice on the basis of Ext. P8 authorisation given by the respondent is clear from the evidence. Ext. P23 is the duplicate copy of the challan for remittance of Rs. 27,500/- in the name of the Store by the second accused. On 7-2-1983. Ext. P24 is Form 12 kept in the bank to show that the amount was remitted to the credit of the food account of the Corporation. PW 3, Clerk of the Canara Bank, said that the remittance in the name of the Store was made before 1.30 p.m. on 7-2-1983. He said that on deposit, the triplicate of the challan will be forwarded to the Corporation on the same day and rice will be released only with the authorisation. Ext. P 30 is the book containing release order and Ext. P 31 is the order by which rice was released to the Store. The evidence of PW 5, Manager of Chengana-cherry unit of the Corporation, shows that these records were produced by him and seized under Ext. P26 mahazar. PW 6 was the Senior Assistant in the Chenganacherry unit depot of the Corporation. With reference to Ext. P29 and Ext. P30(a), he gave evidence that the second accused came with Ext. P8 authorisation and took delivery after showing it to PW 7 Unit Manager. PW 7 supported this evidence. PW 9, who was the Superintendent of the Ware Housing Depot, said that second accused produced Ext. P31 release order before him. PW 10, a Class IV employee, said that as per Ext. P31, he weighed and issued rice to the second accused on 8-2-1983. These facts are not now in dispute also.
9. PW 11 was Accountant of the Store. He said that on 7-2-1983 or any other day, nobody made any advance to the Store and no remittance was made by the Store. He proved Exts. P2 and 8 to be in the hand of the respondent. PW 12, then Accountant of the Store, said that on 7-2-1983, 8-2-1983 or on any subsequent day, no boiled rice was brought to the Store or accounted. The evidence of PW 4 Cashier and PW 2, who came as successor of the respondent, shows that no money was available with the Store arid that there was no entry in the accounts about the purchase of rice or expenditure of Rs. 27,500/ -. In Ext. P22 day book also, there was no entry. From these items of evidence, it is clear that on the basis of Ext. P8 authorisation given by the respondent, second accused got release of 100 quintals of boiled rice on 8-2-1983, but it was never brought to the Store or accounted. That fact is also not in dispute.
10. Attempt of the respondent was to wash his hands off everything under the pretext that the second accused took Ext. P8 back to him on the evening of 7-2-1983 with a statement that delivery of rice was not taken and hence he gave direction to cancel Ext. P6 and thereafter he was unaware that second accused surreptitiously took delivery of the rice and dealt with it in his own way. It is true that PW 4 gave evidence that second accused came back on the evening of 7-2-1983. But she did not support the version of the respondent that Ext. P8 was taken back to the respondent. In that respect, the version of the respondent is unsupported by any evidence. It is an admitted fact that authorisation from the respondent is an essential pre-requisite for getting release of the rice from the Corporation on behalf of the Store. As Secretary, respondent was the person in charge of the entire day-to-day administration of the Store. If Ext. P8 was taken back to him, he did not get it back and allowed it to be with the second accused in order to enable him to take delivery. It is true that before giving delivery of rice, the officials of the Corporation had to get Ext. P8 from second accused and keep it in the file. That seems to have been not done. But that dereliction of duty on the part of the officials cannot exonerate the respondent.
11. Prosecution evidence that Rupees 27,500/- was remitted by the second accused before 1-30 p.m. on 7-2-1983 on behalf of the Store to the credit of the Corporation as amount received from one K.M. Hussain and it was then that Ext. P8 authorisation was given was not disputed by the respondent when questioned Under Section 313 of the Code. He admitted as correct the evidence of PW 4 that he directed her to prepare Ext. P6 receipt in the name of Hussain. He also said that this direction was given with the knowledge that Rs. 27,500/- was remitted in the name of the Store to the credit of the Corporation for getting rice. He also admitted the evidence of PW 4 that no amount or voucher was given to her and the respondent promised her to give the bill or voucher for having expended the amount on behalf of the Store. She also said that on the evening of 7-2-1983, when she asked for bill or voucher to close the accounts, she was directed by the respondent to cancel Ext. P6. He admitted this also to be correct.
12. I do not think that it is possible to accept the version of the respondent that he directed Ext. P6 to be cancelled simply because second accused came back with Ext. P8 and told him that rice was not taken delivery. So long as the amount is in deposit and the authorisation was allowed to be with him, second accused could have taken delivery the next day or some other day. Further, when the amount admitted to have been advanced by Hussain to the Store and deposited in the bank for purchase of rice remained to the credit of the Corporation and when it was not got back and given to Hussain, it is not possible to cancel the receipt. If the respondent did not want the rice to be taken and if he wanted to cancel the receipt, the normal procedure is to get back Ext. P8, get back the amount and pay it to Hussain and then make necessary entries. The explanation is only an eye wash. The prosecution case that the rice was sold to Hussain himself after delivery seems to be probable, though there is no direct evidence to that effect.
13. I am not very happy with the attitude of P.W. 4. Her conduct is also not that of a prudent cashier. She used the same receipt for preparing another receipt in favour of PW 14 and then that was also cancelled. As directed by PW 1, she first gave an unsatisfactory explanation and then she had to give a series of further explanation also. Anyhow, all her explanations were accepted by the respondent to be correct, when questioned Under Section 313. The attitude of the respondent indicates that all his actions were that of a guilty mind acting in furtherance of a common intention with the second accused to dupe the Store and gain undue advantage. He has no explanation why these transactions were not properly brought into the accounts and registers. He has not enquired what happened to Ext. P8 or the amount deposited in the bank to the credit of the Corporation as price of the rice. He did not take any steps to get back the amount or enquire whether rice was purchased or accounted. When PWs 1 and 8 and other members of the board questioned him on 12-2-1983, he at first denied and then admitted everything. Nothing more is required to infer that he was conniving with the second accused.
14. Directions given by the respondent to PW 4 to write Ext. P6 and then to cancel the same without bringing the true facts in the accounts and registers and his subsequent silence and feigned plea of ignorance reveal his guilty mind. Without the concurrence of the respondent, second accused would not have been able to get release of the rice using Ext. P8 and the bank deposit. So also, without his connivance, there is no possibility of the rice being disposed of without briging it to the Store and accounting. The reasons assigned by the Special Judge for exonerating the respondent are more fanciful than real. What is involved is not mere dereliction of duty or ignorance. Guilty mind and active or passive assistance is clear.
15. It is true that, as held in Bhatnagar v. State of Maharashtra, AIR 1979 SC 826 : (1979 Cri LJ 566) the abuse of position, in order to come within the mischief of Section 5(1)(d) of the Prevention of Corruption Act, must necessarily be dishonest and it must be proved that the accused caused deliberate loss to the department. The prosecution must also prove affirmatively that by corrupt or illegal means or by abusing his position, the accused obtained any pecuniary advantage for himself or some other person. Counsel also relied on the decisions in Dalpat Singh v. State of Rajasthan, AIR 1969 SC 17 : (1969 Cri LJ 262) Trilok Chand Jain v. State of Delhi, AIR 1977 SC 666 : (1977 Cri LJ 254) and Major S. K. Kale v. State of Maharashtra, AIR 1977 SC 822 : (1977 Cri LJ 604). It was argued that the prosecution did not adduce any evidence to show that rice was sold and money received or that a profit was obtained so that pecuniary advantage could be said to have been gained.
16. It is true that dishonest misappropriation or conversion to one's own use or obtaining any valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing position as a public servant are matters of proof by the prosecution. But when entrustment is proved and failure to account is established when there is a duty to account, the rest is only a matter that follows by way of inference. Boiled rice at this rate was not available in open market. It was intended only for sale to card holders. How it was disposed of and what was the amount received are matters within the exclusive knowledge of the accused and the prosecution may not be sometimes able to prove it. The very fact that rice was purchased in the name of the store and not accounted indicates corrupt or illegal means or otherwise abusing official position for obtaining valuable thing or pecuniary advantage. Further proof is not required. What is involved in this case is using the name of Store and the official position of the accused to gain undue advantage. An offence, as defined in Section 5(1)(d), is definitely made out and the respondent is proved, beyond doubt, to have committed an offence punishable Under Section 5(2). That is evidently in furtherance of the common intention also.
17. On the question of sentence, I am inclined to award only the minimum prescribed by law.
Criminal appeal is allowed and the acquittal of the respondent is set aside. He is convicted for an offence punishable Under Section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year. Special Judge will take steps to excute the sentence.