Kerala High Court
K. Abdul Basheer Kapur vs The State Of Kerala on 30 December, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938
CRL.A.No. 168 of 2006 ( )
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AGAINST THE JUDGMENT IN CC 17/2000 of ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, KOZHIKODE. DATED 30-12-2005
APPELLANT(S)/ACCUSED::
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K. ABDUL BASHEER KAPUR,
S/O. MOIDEEN K., KAPPUR HOUSE,,
P.O. MUNDUPARAMBA,
MALAPPURAM DISTRICT.
BY ADV. SRI.P.CHANDRASEKHAR
RESPONDENT(S)/COMPLAINANT::
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THE STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
dlk
P.UBAID, J.
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Crl.A.No. 168 of 2006
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Dated this the 05th day of January, 2017
J U D G M E N T
The appellant herein was a cashier at the Malappuram Electrical Major Section of the Kerala State Electricity Board, from 1994 to 1997. As cashier, he was authorized to receive electricity charges from consumers. He was bound to issue receipts for the money received, and to account money transactions properly everyday. On the allegation that he misappropriated an amount of 1,03,997/- from the electricity charges received from various consumers without accounting it properly in the registers during the period from 30.4.1997 to 11.9.1997, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Kozhikode in C.C. No. 17 of 2000. The crime was registered on the basis of a complaint made by the Assistant Executive Engineer of Crl.A.No. 168 of 2006 -2- the Electrical Major Section. The Vigilance and Anti Corruption Bureau, Malappuram conducted an investigation, and submitted final report before the learned Trial Judge alleging breach of trust, forgery, falsification of accounts, and also criminal misappropriation punishable under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988.
2. The accused entered appearance before the learned Trial Judge, and pleaded not guilty to the charge framed against him under Section 13(2) read with Section 13 (1)(c) of the Prevention of Corruption Act 1988, and also under Sections 409, 468 and 477A of the Indian Penal Code.
3. The prosecution examined 17 witnesses, and marked Exts.P1 to P99 documents during trial. When examined under Section 313 Cr.P.C., the accused projected a defence that he was only one of the 5 cashiers who had dealt with cash transactions at the office, that the other cashiers had also received money from consumers, and that Crl.A.No. 168 of 2006 -3- he had not misappropriated any amount from the funds of the Kerala State Electricity Board. In spite of opportunities granted by the trial court, the accused did not adduce any evidence in defence.
4. On an appreciation of the evidence adduced by the prosecution, the learned Trial Judge found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three years each, and to pay a fine of 20,000/- each under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, and under Section 409 of IPC, to undergo rigorous imprisonment for one year, and to pay a fine of 5,000/- under Section 468 of IPC, and to undergo another term of rigorous imprisonment for two years under Section 477A of IPC, by judgment dated 30.12.2005 in C.C.No. 17 of 2000. Aggrieved by the judgment of conviction, the accused has come up in appeal.
5. When this appeal came up for hearing, the learned counsel for the appellant submitted that there is Crl.A.No. 168 of 2006 -4- absolutely no evidence to prove the alleged breach of trust, or criminal misappropriation from public funds, and that the appellant is entitled for acquittal on legal ground also, for the reason that there is no proper and valid prosecution sanction in this case under Section 19 of the Prevention of Corruption Act, or under Section 197 of Cr.P.C.. On the other hand, the learned Public Prosecutor submitted that the copy of the sanction produced by the prosecution stands properly proved, and that on facts also, the case of breach of trust and misappropriation stands well proved.
6. Before going into the factual aspects as regards criminal misappropriation, breach of trust, falsification of accounts etc., let me see whether there is a proper and legal prosecution sanction in this case, or whether such a sanction stands proved according to law. Ext.P99 is the copy of the prosecution sanction granted by the Chief Engineer of the Kerala State Electricity Board. It was submitted by the learned Public Prosecutor that the Crl.A.No. 168 of 2006 -5- original sanction was produced in another case against the accused. It is not known or explained how the original sanction happened to be produced in another case. Even the Ext.P99 copy shows that the materials on the basis of which the sanction was granted by the Chief Engineer are in fact the materials relating to this case. If so, it is not known how or why the original sanction was produced in another case. A reading of the sanction shows that the allegations therein, and also the matters regarding which sanction was granted, are exactly the allegations and matters in this case. In such a situation, the original sanction should have been produced by the prosecution in this case. The VACB did not make any effort to take back the prosecution sanction and produce it here, or even to obtain a certified copy of the prosecution sanction from the court. Ext.P99 is only a true copy, and not a certified copy. The person who certified it as true copy was not examined. Ext.P99 document was only marked through the Investigating Officer. In Savithri v. Crl.A.No. 168 of 2006 -6- Deputy Superintendent, Vigilance and Anti Corruption Bureau (2015 (3) KLT 909), this Court held that the Investigating Officer is not the right and the competent person to prove a prosecution sanction granted under Section 19 of the Prevention of Corruption Act. In so many decisions, this Court has settled that the prosecution sanction must be proved by the person who granted the sanction or issued the sanction order, except in cases where the sanction can claim some sanctity or immunity. In this case, the prosecution did not care to examine the Chief Engineer who granted the sanction, or even the officer who certified Ext.P99 as true copy. In a case where a prosecution cannot be sustained in the absence of a proper sanction, the prosecution must prove the original sanction itself, and to prove it in evidence, the person who granted the sanction must be examined. This is the trend of all the decisions on the point. But in this case, there is no original prosecution sanction. What is produced as Ext.P99 is not even a Crl.A.No. 168 of 2006 -7- certified copy, and even the person who granted the sanction was not examined to prove the copy. In such a situation, it will have to be found that there is no proper and valid prosecution sanction in this case. On this ground itself, the accused is entitled for acquittal as regards the charge under the PC Act, in view of the bar under Section 19 of the Prevention of Corruption Act.
7. Just because the prosecution is barred under Section 19 of the Prevention of Corruption Act, the accused will not automatically get an acquittal as regards the conviction under Sections 409, 468 and 477A of the Indian Penal Code. The effect of the above finding on prosecution sanction is only that the conviction and sentence under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act will have to be set aside.
8. Now, the question is whether the conviction under Sections 409, 468 and 477A of the Indian Penal Code can be sustained, if the case stands proved on facts. The Crl.A.No. 168 of 2006 -8- Hon'ble Supreme Court has held in so many decisions that misappropriation by a public servant, or breach of trust by such public servant, or falsification of accounts, or forgery of documents for the purpose of such misappropriation or breach of trust, cannot at all be said to be part of official functions, and so, in such prosecutions, the accused can be convicted even in the absence of sanction under Section 197 of Cr.P.C. Here, the prosecution has not produced any sanction as required under Section 197 of Cr.P.C. A public servant will get protection under Section 197 of Cr.P.C. only in cases where he happened to be prosecuted in connection with something done by him in the discharge of official duty, or as part of his official functions. The provision under Section 197 Cr.P.C. is meant to provide protection to public servants who happened to be implicated or arraigned as accused in connection with some lapses or wrongs which they happened to commit in the discharge of the official functions as public servants. What is alleged in this case is Crl.A.No. 168 of 2006 -9- not such lapse or mistake or malfeasance in the discharge of official functions. What is alleged in this case is clear criminal misappropriation and falsification of accounts, amounting to culpable misconduct on the part of a public servant. Such culpable misconduct involving voluntary act of falsification of accounts and misappropriation in breach of trust will never get the protection of law under Section 197 of Cr.P.C. So I find that the conviction under Sections 409 or 468, 477A of IPC can be sustained in this case, if the factual aspects as regards such allegations stand properly proved. Anyway, in view of the finding on the question of sanction, the accused is entitled for acquittal as regards the offence under Section 13 (2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988.
9. Before going to the different instances of misappropriation and falsification of accounts, let me see whether the conviction in this case under Section 468 of IPC can be sustained even if the allegations of misappropriation Crl.A.No. 168 of 2006 -10- and falsification of accounts are proved. What is punishable under Section 468 of IPC is forgery with the object of cheating. In this case, what is prominently proved is criminal misappropriation in breach of trust, by falsification of accounts. Receipt of money by the accused from various consumers in his capacity as cashier is proved by evidence, and it also stands consistently proved that such receipts were not in fact entered by him in the cash book or other registers. Thus, what is proved is falsification of accounts, or failure to account the cash dealings in the registers. This cannot be strictly said to be forgery for the purpose of cheating as defined under Section 468 of IPC. The proved falsification of accounts and criminal misappropriation in breach of trust are otherwise punishable under Sections 409 and 477A of IPC. In such a situation, there cannot be a conviction under Section 468 of IPC. Thus, I find that the conviction against the appellant under Section 468 of IPC also will have to be set aside.
Crl.A.No. 168 of 2006 -11-
10. Now let me see whether there is evidence in this case to the satisfaction of the court, proving criminal misappropriation in breach of trust, and also falsification of accounts as alleged by the prosecution. PW1 is the Assistance Executive Engineer who made complaint in this case on detection of different instances of falsification of accounts and misappropriation made by the accused. Ext.P6 is the complaint made by him. His evidence is that before making complaint to the Police, he had reported the matter to the Executive Engineer, and on such report, further inspection of accounts was made from the office of the Executive Engineer. On the basis of clear materials proving such falsification of accounts and misappropriation, he made the Ext.P6 complaint to the Police. Ext.P3 is the letter sent by him to the Executive Engineer, and Ext.P5 is his report showing the instances of falsification of accounts and misappropriation made by the cashier. PWs 4, 5, 8 and 12 to 16 are some of the consumers examined by the Crl.A.No. 168 of 2006 -12- prosecution to prove payment of electricity charges. There are documents showing that the amount of electricity charges paid by these witnesses was not in fact entered in the cash book and other registers, and that such amounts were misappropriated by the cashier without entering those payments in the registers. The other engineers and officers of the Kerala State Electricity Board examined by the prosecution include some of the engineers who produced some documents before the Police, and some are examined to prove the different instances of misappropriation. Of course, what is more important in this case is documentary evidence. PW1 and the other officials were examined to prove the various documents showing the different instances of misappropriation made by the accused without accounting payments in the cash book and other registers.
11. Though the prosecution alleged 18 instances of misappropriation, only 15 instances could be proved during trial. The learned Trial Judge has discussed such Crl.A.No. 168 of 2006 -13- instances in detail in the judgment. All such instances examined and discussed in detail by the court below need not be discussed in appeal because it will amount to repetition of the exercise by the Appellate Court. Still let me examine some of the instances discussed by the trial court.
12. The first instance is regarding misappropriation of 2,643/-. Ext.P7 is the receipt relating to the consumer No. 9631, and Ext.P7(c) is the copy of the receipt showing receipt of 2,643/- at the office. This will show that the amount was collected by the accused from the consumer No. 9631. PW12 is the said consumer who paid the amount, and he is consistent that he had made such payment to the accused. This payment of electricity charges is not seen accounted or entered in the Exts. P8 and P10 registers. There is nothing to show that this amount was deposited in the Bank on the next day. The hand writing and initials in Exts. P7, P7(a), P8 and P10(a) were identified by PW1 as that of the accused. Thus, evidence Crl.A.No. 168 of 2006 -14- proves acceptance of 2643/- by the accused as electricity charges from PW12, but this amount was not accounted, and it was not remitted in the Bank also. The resultant finding is that this amount was misappropriated by the accused in breach of the trust reposed on him as a public servant.
13. Another instance of misappropriation discussed by the court below is regarding an amount of 2,267/-. This amount was paid by the consumer No. 8815. PW13 is the said consumer. Exts.P11, P11(a) and P11(b) documents proved by PW1 will prove such payment by PW13, but such payment is also not seen accounted in the registers, or deposited in the Bank. Payment of the amount is proved by PW13, and also the receipt given to him by the accused. The amount collected from PW13 as per Ext.P11 is not seen entered in the Ext.P12 SOP-10 register, and the Ext. P11(c) SOP -6 register. PW 1 stated that an entry regarding payment or deposit should have been there, if the accused had in fact deposited the amount in the Bank on the next Crl.A.No. 168 of 2006 -15- day. Thus, falsification of accounts regarding the said amount, and also misappropriation of the said amount is proved.
14. Another instance discussed by the court below is regarding an amount of 10,200/-. This relates to the consumer No. 13601. PW5 is the said consumer. He has given evidence regarding remittance of 10,200/- by him, and he has also proved the receipt issued to him by the accused. Ext. P13(a) receipt in the Ext.P13 receipt book will show receipt of 10,200/- from PW5, but this payment is not seen entered in the register, or deposited in the bank. This aspect is also well proved by PW1, who identified the writings and initials of the accused. PW1 well identified the writings and initials of the accused in the Exts. P13(a), P13
(b), P14 and P14(a) documents. All these documents will show receipt of money from PW5, but PW1 is definite that this amount was not accounted in any register, and it was not remitted at the Bank also on the next day. The evidence Crl.A.No. 168 of 2006 -16- given by PW1 on the above three instances of misappropriation by falsification of accounts, stands not in any manner discredited. There is also no reason to disbelieve PW1 on this aspect.
15. Another instance discussed by the court below is regarding an amount of 13,353/- received as per the Ext.P15 demand statement. Ext.P16 proved by PW1 will show receipt of money as per Ext.P15, and he gave evidence that Ext. P14(b) entry in Ext.P14 SOP-10 register does not contain anything showing remittance of the said amount. Thus, it stands proved that receipt of this amount was also not accounted by the accused, or entered in the register. This amount was also not deposited in the bank. PW1 affirmed that the said amount collected as per Ext.P15 was nowhere entered in the Ext.P10 register, and there is no entry in the Ext.P14 register also. There is no entry showing deposit of the amount in the Bank by the accused. PW1 proved the writings and initials of the accused in the Crl.A.No. 168 of 2006 -17- Exts.P14 and P15 documents. Thus, I find that misappropriation of 13,353/- in breach of trust by the accused by falsification of accounts also stands well proved.
16. Yet another instance discussed by the court below is regarding receipt of 22,471/- from the consumer No. 10254. Ext. P19 proved by PW1 will show receipt of the said amount in office, but PW1 stated that Ext.P19(a) register does not contain any entry relating to the said Ext.P19 receipt. Ext.P19(b) in the Ext.P14 SOP-10 register also does not contain any such entry proving that such amount was accounted in the concerned register. PW1 also stated that this amount is also not seen remitted at the Bank. The only finding possible is that this amount was also misappropriated by the accused without making necessary entries in the registers, or by falsifying the accounts with dishonest intention. Thus, criminal misappropriation in breach of trust of 22,471/- also stands proved. Crl.A.No. 168 of 2006 -18-
17. Another important instance of misappropriation found by the trial court is regarding an amount 13,205/- received from the consumer No. 10757. Of course, the said consumer is not seen examined, but the things regarding receipt and non accounting are proved convincingly by PW1. The Ext.P20 receipt relates to the said payment by the said consumer on 28.8.1997. Such receipt is further proved by the Ext.P20(a) office copy of the receipt. But, PW1 stated in evidence that the amount collected as per Ext.P20 is not seen entered in the Exts.P19 (a) and P19
(b) registers. This means that the account relating to the said amount was falsified by the accused, and without remitting it at the Bank, he appropriated the amount for his own purposes. Thus, criminal misappropriation of 13,205/- in breach of trust by falsification of accounts also stands well proved.
18. Another instance of misappropriation by falsification of accounts discussed by the court below is Crl.A.No. 168 of 2006 -19- regarding an amount of 11,337/- received from the consumer No. 9301. PW15 is the said consumer. He has proved Ext.P30 receipt issued to him by the accused. The carbon copy of the receipt is contained in Ext.P31 receipt book. Ext.P32 is the relevant sheet in the SOP-10 register. PW1 stated that Ext.P32 does not contain any entry regarding the money received as per Ext.P30 receipt. He also proved that the said amount received from Consumer No. 9301 (PW15) is not seen deposited in the Bank. PW15 is definite that he had made payment of the said amount to the accused. The writings and initials of the accused in the Exts. P30, P30(a) and P32 documents were identified and proved by PW1. Thus, I find that the said instance of criminal misappropriation of 11,337/- by the accused in breach of trust and by falsification of accounts also stands well proved.
19. I feel it not necessary to discuss the other evidence of misappropriation. On a perusal of the lower Crl.A.No. 168 of 2006 -20- court judgment, I find that the findings made by the court below regarding those instances are also well acceptable. There is nothing to show that the court below has erred in any of the findings regarding such instances of misappropriation.
20. On an examination of the various instances of misappropriation proved in evidence by PW1 and the other engineers and officials, the court below found that the accused had misappropriated total amount of 97,642/- collected from various consumers, in breach of the trust reposed on him as a public servant, and that he misappropriated the said huge amount by falsifying the accounts, and without remitting it at the Bank. I find no reason to reverse the findings of the court below on such different instances of misappropriation. Of course, it is true that a conviction in this case is not possible under Section 13 (2) of the Prevention of Corruption Act because, there is no prosecution sanction under Section 19 of the Prevention of Crl.A.No. 168 of 2006 -21- Corruption Act. But, a clear case of misappropriation in breach of trust by falsification of accounts is well proved by the evidence of the material witnesses, including PW1. True it is that, there is no sanction under Section 197 of Cr.P.C. I have already found that the accused will not get the benefit of the protection under Section 197 Cr.P.C. in this case. Falsification of accounts or criminal misappropriation in breach of trust by a public servant will never get the protection under Section 197 of Cr.P.C. It was submitted that pending the proceedings, the petitioner's father-in-law had remitted an amount of 68,767/-. Though not very much proved, it is practically admitted that there was such payment from the father-in-law of the appellant. Of course, such payment will not absolve the accused from the criminal liability otherwise incurred. Payment of amount later, in cases of misappropriation will not condone such instances of misappropriation. Such offence once committed, is committed, and it cannot be condoned by making payment Crl.A.No. 168 of 2006 -22- later. Anyway, that is an aspect for consideration in the matter of sentence. In view of the clear findings made above, the conviction against the appellant under Sections 409 and 477A of IPC will have to be confirmed. I find no reason or ground for interference in the findings made by the trial court. I have already found that the conviction under Section 468 of IPC is liable to be set aside, in view of the conviction otherwise under Section 409 and 477A of IPC.
21. In the particular circumstances of this case, I feel it appropriate to reduce and modify the sentence imposed by the court below. The prosecution is prominently brought under Section 13(2) of the Prevention of Corruption Act. But the Vigilance and Anti Corruption Bureau miserably failed to sustain the prosecution by the culpable failure to produce a proper and legal prosecution sanction. The other offences under the Indian Penal Code are incidentally alleged along with the charge under Section 13(2) of the Prevention of Corruption Act. The alleged misappropriation Crl.A.No. 168 of 2006 -23- was done years back, and the appellant brought appeal before this Court in 2006. Now we have entered the calendar year 2017. The crime was registered at the prime age of the accused. He was 32 at that time. The long lapse of years since initiation of prosecution, and the trauma of prosecution which the appellant must have undergone for the last so many years also can be considered by the court. On a consideration of all the relevant aspects, I feel it appropriate to reduce the term of sentence to imprisonment for six months. Subject to this reduction in sentence, the conviction under Sections 409 and 477A of IPC can be confirmed.
In the result, this appeal is allowed in part. The appellant is not found guilty of the offence under Section 13 (2) read with Section 13(2)(c) of the Prevention of Corruption Act, 1988 and under Section 468 of IPC. The conviction and sentence imposed on him by the court below under those Sections will stand set aside, and the appellant will stand Crl.A.No. 168 of 2006 -24- acquitted of those offences in appeal under Section 386(b)
(i) Cr.P.C. But the conviction under Sections 409 and 477A of IPC is confirmed. However, the sentence imposed by the court below will stand modified, and reduced to rigorous imprisonment for six months each. The fine sentence under Section 409 of IPC is maintained, but the default sentence will stand reduced to rigorous imprisonment for three months. The appellant will get the benefit of set off as already ordered by the trial court.
P.UBAID JUDGE ds