Kerala High Court
G.Krishnan Nair vs State Of Kerala on 31 July, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938
CRL.A.No. 1817 of 2009 ( )
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AGAINST THE JUDGMENT IN CC 9/2006 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM
DATED 31-07-2009
APPELLANT/ACCUSED:
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G.KRISHNAN NAIR,SECRETARY,ALACHALKONAM
HARIJAN HANDLOOM-WEAVERS INDUSTRIAL CO-OPERATIVE
SOCIETY LTD.NO.T.355,THIRUVANANTHAPURAM.
BY ADV. SRI.M.SREEKUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,REPRESENTED BY THE
PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
BY P.P.SRI. RAJESH VIJAYAN
BY P.P.SRI. JESTIN JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-03-2016,
ALONG WITH CRA. 1947/2010 & OTHER CONNECTED CASES, THE COURT ON
31.3.2016 DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
..................................................
Crl.A.No.1817/2009,1947/2010,1830/2009,
1833/2009,1714/2009,1948/2010,1719/2009,
1476/2011,1829/2009,280/2012,1818/2009,
1231/2013 & 1826 of 2009.
.......................................................
Dated this the 31st day of March, 2016.
JUDGMENT
The sole accused in C.C.No.9 of 2006 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the appellant in Crl.A.No.1817 of 2009. The first accused in C.C.No.10 of 2006 on the file of the same court is the appellant in Crl.A.No.1818 of 2009, while State, the complainant in the same case,is the appellant in Crl.A.No.280 of 2012. The first accused in C.C.No.11 of 2006 on the file of the same court is the appellant in Crl.A.No.1830 of 2009, while State, the complainant in the same case, is the appellant in Crl.A.No.1947 of 2009. The first accused in C.C.No.12 of 2006 on the file of the same court is the appellant in Crl.A.No.1833 of 2009, while the second accused in the same case is the appellant in Crl.A.No.1714 of 2009 and State/the complainant is the appellant in Crl.A.No.1948 of 2010. The first accused in C.C.No.13 of 2006 on the file of the same court is the appellant in Crl.A.No.1829 of 2009, while the second accused in the same case is the appellant in Crl.A.No.1719 of 2009 and State/the complainant in the same case is the appellant in Crl.A.No.1476 of 2011. The first accused in C.C.No.14 of 2006 Crl.A.No.1817/2009 & Con.Cases 2 on the file of the same court is the appellant in Crl.A.No.1826 of 2009 while State/the complainant in the same case is the appellant in Crl.A.No.1231 of 2013.
2. C.C.No.9 of 2006 was registered against the sole accused, who was the then Secretary of Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.T.355, Vazhichal, Thiruvananthapuram (hereinafter referred to as 'the society') by the Deputy Superintendent of Police, VACB, Thiruvananthapuram unit, Crime No.11 of 1998 under section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act') which was originally registered as Cr.No.116/1997 of Cantonment police station, Thiruvananthapuram and it was transferred to VACB, Thiruvananthapuaram unit . The case of the prosecution in that case was that the sole accused while working as Secretary of the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society,Vazhichal, Thiruvananthapuram from 11.3.1982 to 15.10.1997 as a public servant unauthorisedly withdrew Rs.20,800/- on 16.12.1994 from TPA A/c No.3604 by presenting the withdrawal form No.041192 without the consent of the society as well as District Industrial Centre, Thiruvananthpauram, which was entrusted to him for the purpose of using the same for the welfare of the society and Crl.A.No.1817/2009 & Con.Cases 3 misappropriated the same without entering the same in the day book of the society and thereby he had committed the above said offence.
3. The case was originally registered on the basis of Ext.P1 complaint by the Contonment police as Crime No.161 of 1997 of that police station on the basis of a complaint given by PW1, the District Treasury Officer, Thiruvanathapruam.
4. C.C.No.10 of 2006:
The above case was charge sheeted by the Deputy Superintendent of Police, VACB, Thiruvanananthapuram unit against 10 accused persons in Crime No.11 of 1998 of VACB, Thiruvananthapuram unit alleging offences under sections 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and Sections 465, 468, 471, 477A, 420 and 120B of the Indian Penal Code. The case of the prosecution was that the first accused as the Secretary of the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society entered into a criminal conspiracy with accused 2 to 10, who were the officials of the District Treasury Thiruvananthapuram and in pursuance of their conspiracy, falsified the T.P.Account Ledger of Account No.3770 of District Treasury, Thiruvananthapuram to make it appear that Rs.7,50,000/- was allotted and transferred to the T.P.Account of the society on 27.3.1996 whereas the actual Crl.A.No.1817/2009 & Con.Cases 4 amount allotted to the society as the working capital grant was only Rs.1,50,000/- and first accused had presented the cheque No.072026 for an amount of Rs.50,000/- on 30.4.1996 by affixing the seal of the society and forging the signature and seal of the General Manager, District Industrial Centre, Thiruvananthpuram and presented the same for encahsment and the eighth accused as the passing clerk entered the details of the forged cheque in TPA ledger and the third accused as the passing officer verified and passed the cheque and the first accused withdrew the amount and misappropriated the same and again on 5.6.1996, the first accused had presented cheque No.072029 for Rs.50,000/- forging the signature and seal of the General Manager, District Industrial Centre, Thiruvananthpuram and the sixth accused as the passing clerk entered the details of the forged cheque in TPA ledger No.3770 and the third accused as the passing officer verified and passed the cheque and the first accused obtained the amount and misappropriated the same and thereby on account of the conspiracy between accused 1 to 10, entered into criminal conspiracy during the period between the period 27.3.1996 and 5.6.1996 accused 3, 6 and 8 passed two forged cheques thereby enabling the first accused to withdraw Rs.1,00,000/- from T.P. Account No. 3770 of District Treasury, Thiruvananthapuram and enabled him to Crl.A.No.1817/2009 & Con.Cases 5 misappropriate the same and thereby all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the Act, 1988 and sections 465, 468, 471, 477A, 420 and 120B of the Indian Penal Code.
5. The case was also originally registered by the Cantonment police as Crime No.161 of 1997 of Cantonment police station, Thiruvananthapauram and thereafter it was transferred to VACB, Thiruvananthapuram and registered as Crime No.11 of 1998 of VACB, Thiruvananthapuram unit and investigation was completed and final report was filed. The case was taken on file as C.C.No.10/2006 and after hearing both sides, charge under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code was framed against all the accused and the same was read over and explained to them and they pleaded not guilty.
6. C.C.No.11 of 2006:
The above case was also charge sheeted by the Deputy Superintendent of Police, VACB, Thiruvananthapuram unit against accused 1 to 10 alleging offences under sections 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120B of the Indian Penal Code. The case of the prosecution Crl.A.No.1817/2009 & Con.Cases 6 was that the first accused was the Secretary of the society entered into criminal conspiracy with accused 2 to 10, who were the officials of the District Treasury and made a false entry in TPA Ledger of Account No.3770 by crediting an amount of Rs.7,50,000/- as against the original allotment of working capital grant of Rs.1,50,000/- and on 9.8.1996, the first accused presented the cheque No.072032 for Rs.4,00,000/- forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and presented the cheque for encashment and the eighth accused as the passing clerk, entered the details in the cheque in the concerned ledger and the third accused as the passing officer passed the cheque enabling the first accused to withdraw the amount and misappropriated the same. Again on 16.8.1996 the first accused presented the cheque No.072033 for Rs.1,00,000/- forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and the sixth accused as the passing clerk, entered the details of the forged cheque in TPL Ledger No.3770 of District Treasury, Thiruvananthapuram and the third accused as the passing officer, passed the cheque enabling the first accused to withdraw the amount of Rs.1,00,000/- on 16.8.1996 and misappropriated the amount and thereby on account of the conspiracy between accused 1 to 10, Crl.A.No.1817/2009 & Con.Cases 7 accused 3, 6 and 8 allowed the forged cheques for an amount of Rs.5,00,000/- to be withdrawn by the first accused and thereby they have committed offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
7. This case was also registered as Cr.No.161/1997 of Cantonment police station on the basis of the complaint given by PW1 and later transferred to VACB, Thiruvananthapuram Unit where it was registered as R.C.11/1998 of VACB, Thiruvananthapuram unit and after investigation final report was filed against all the accused persons for the offences alleged above. After filing of the final report, the case was taken on file as C.C.No.11/2006 and after appreciation of evidence and hearing both sides charge under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 420,477A and 120 B of the Indian Penal Code was framed against all the accused and the same was read over and explained to them and they pleaded not guilty.
8.C.C.No.12 of 2006:
This is a case charge sheeted by the Deputy Superintendent of Police, VACB, Thiruvananthapuram Unit against accused 1 to 10 alleging offences punishable under section 13(1)(d) read with section Crl.A.No.1817/2009 & Con.Cases 8 13(2) of the P.C.Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
9. The case of the prosecution in nutshell was that the first accused was the Secretary of Alachalkonam Harijan Handloom Weaver's Industrial Co-Operative Society Ltd.No.T.355, Vazhichal and he entered into criminal conspiracy with accused 2 to 10, who were the officials of the District Treasury, Thiruvananthapuram and in pursuance of their conspiracy, falsified the Account Ledger of TPA 3604 of District Treasury, Thiruvananthapuram to make it appear that a sum of Rs.4,76,000/- was allotted and transferred to the TP Account of the society on 30.8.1996 without noting the transfer credit numbers and also made it convenient to the first accused to obtain cheque book from the Treasury in this account with dishonest intention and the first accused in that capacity presented the cheque No.571201 for Rs.4,50,000/- on 17.8.1996 by affixing the signature and seal as Secretary of the society and also by forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and the fifth accused as passing officer, passed the cheque and entered the details of the forged cheque in TPA Ledger No.3604 as true and correct and enabled the first accused to obtain a sum of Rs.4,50,000/- unauthorizedly on 17.8.1996 from Crl.A.No.1817/2009 & Con.Cases 9 the treasury by illegal means misusing his official position. The first accused,in the same capacity, again presented the cheque No.571204 for Rs.4,00,000/- on 26.9.1996 by affixing the signature and seal as Secretary of the society and forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and presented the cheque and the sixth accused, who was in charge of TPA section clerk, wrote the details of the forged cheque in TPA Ledger No.3604 and the third accused as the passing officer, verified and passed the cheque as true and correct and enabled the first accused to obtain a sum of Rs. 4,00,000/- on 26.9.1996 in an unauthorised manner by misusing their official position. Again the first accused, in the capacity as Secretary of the society, presented the cheque No.571207 for Rs.15,000/- on 24.12.1996 by affixing the signature and seal as Secretary of the society and forged the signature and seal of the General Manager, District Industries Centre, Thiruvananthpauram and the sixth accused, who was in charge of TPA section, wrote the details of the forged cheque in TPA Ledger No.3604 and the second accused, as passing officer, verified and passed the cheque as true and correct and enabled the first accused to obtain a sum of Rs.15,000/- on 24.12.1996 unauthorizedly by misusing their official position and thereby on Crl.A.No.1817/2009 & Con.Cases 10 account of their conspiracy on 26.9.1996, 18.7.1996 and 24.12.1996, accused 3, 6, 8 and 2 and 5 allowed the first accused to withdraw the amount of Rs.8,65,000/- causing a loss to the Government and thereby all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
10. The case was originally registered by the Cantonment police on 12.9.1997 as Crime No.161 of 1997 on the basis of a written complaint submitted by PW1, the District Treasury Officer, Thiruvananthapuram and preliminary investigation in the case was conducted by CW46, the Sub Inspector of Police, Cantonment police station. Thereafter, as per the direction of the Director, VACB, Thiruvananthpauram Unit, the case was re-registered as Crime No.11 of 1998 of VACB, Thiruvananthapuram unit by CW47 and investigation was conducted by CW48 and it was completed by CW50, the Inspector of Police,VACB, Southern Range and after completing the investigation, final report was filed by CW51. After filing final report, the case was taken on file as C.C.No.12 of 2000 and when the accused appeared, after hearing both sides, charge under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, Crl.A.No.1817/2009 & Con.Cases 11 420 and 120 B of the Indian Penal Code was framed against all the accused persons and the same was read over and explained to them and they pleaded not guilty.
11. C.C.No.13 of 2006:
The above case was charge sheeted by the Deputy Superintendent of Police, VACB, Thiruvananthapuram Unit against accused 1 to 10 alleging offences punishable under section 13(1)
(d) read with section 13(2) of the P.C. Act, 1988 and Sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
12. The case of the prosecution in nutshell was that the first accused was the Secretary of the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.T.355, Vazhihal. He entered into a criminal conspiracy with accused 2 to 10, who were officials of the District Treasury, Thiruvananthapuram and in pursuance of their conspiracy, falsified the account Leger of TPA 3604 of District Industries Centre, Thiruvananthauram so as to make it appear that a sum of Rs.3,98,000/- was alloted and transferred to the TPA of the Society on 28.12.1996 and Rs.15,00,000/- was transferred and credited on 31.3.1997 in the ledger of T.P Account of the society without noting the transfer credit numbers. The first accused obtained cheque book from the treasury and he presented the cheque Crl.A.No.1817/2009 & Con.Cases 12 No.571208 for Rs.4,00,000/- on 20.1.1997 by affixing the signature and seal of the Secretary of the society and forging the signature and seal of the General Manger, District Industries Centre, Thiruvananthapuram and presented the same in the District Treasury, Thiruvananthapuram and the 8th accused, who was in charge of TPA section clerk as passing clerk, entered the details of the forged cheque in TPA Ledger No.3604 of District Industries Centre, Thiruvananthapuram and the fifth accused verified and passed the cheques and enabled the first accused to obtain Rs.4,00,000/- on 20.1.1997 unauthorizedly by misusing their official position. Again the first accused, in the same capacity, presented the cheque No.571209 for Rs.4,00,000/- on 30.7.1997 by affixing the signature and seal as Secretary of the Society and forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and presented the cheque at the District Treasury, Thiruvananthapuram and the sixth accused as passing clerk, entered the details of the forged cheque in the T.P. Account of the above society on 30.7.1997 and the fifth accused as passing officer verified and passed the cheque enabling the first accused to withdraw the amount of Rs.4,00,000/- on 30.7.1997 from the treasury by misusing their official position. Again on 1.8.1997 the Crl.A.No.1817/2009 & Con.Cases 13 first accused, in the same capacity as the Secretary of the society, presented cheque No.571210 for Rs.4,00,000/- by affixing the seal and signature of the Secretary of the society and forging the signature and seal of the General Manager of the District Industries Centre, Thiruvananthapuram and the 7th accused, who was in charge of TPA Section clerk, as passing clerk, entered the details in the TPA Ledger No.3604 and the fourth accused as passing officer, passed the cheque for payment enabling the first accused to obtain an amount of Rs.4,00,000/- from that account on 1.8.1997 causing unlawful gain to him by misusing their official position and thereby, all of them on account of the criminal conspiracy by misusing their official position, made wrong entries in the registers maintained in the treasury for the period between 28.12.1996 and 1.8.1997. Accused Nos. 2, 4, 5, 6 and 7 by misusing their official position, allowed the first accused to withdraw an amount of Rs.12,00,000/- from the T.P.A. Ledger No.3604 of District Treasury, Thiruvananthapuram using the forged documents as genuine documents and thereby all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
Crl.A.No.1817/2009 & Con.Cases 14
13. The case was originally registered on the basis of a written complaint filed by PW1, the then District Treasury Officer, Thiruvananthapuram as Crime No.161 of 1997 of Cantonment Police Station, Thiruvananthapuram and the preliminary investigation was conducted by CW47, the Sub Inspector of Police, Cantonment Police station and thereafter as per the direction of the Director of VACB, Thiruvananthapuram, the case was re registered as Crime No.11 of 1998 of VACB, Thiruvananthapuram by CW48 and investigation was conducted by CW49 and completed by CW51, the Inspector of Police, VACB, Southern range and CW52 submitted final report. After the final report was filed, the case was taken on file as C.C.No.13 of 2006 and after hearing both sides, charge under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477 A, 420 and 120 B of the Indian Penal Code was framed against all the accused persons and the same was read over and explained to them and they pleaded not guilty.
14. C.C.No.14 of 2006:
This case was charge sheeted by the Deputy Superintendent of Police, VACB, Thiruvananthapuram Unit against accused 1 to 10 alleging offences under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of Crl.A.No.1817/2009 & Con.Cases 15 the Indian Penal Code. The case of the prosecution in nutshell was that the first accused was the Secretary of Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.355, Vazhichal. He entered into criminal conspiracy with accused 2 to 10, who were the officials of the District Treasury, Thiruvananthapuram and in pursuance of their conspiracy, falsified the Ledger of TPA 3604 of District Treasury, Thiruvananthapuram so as to make it appear that a sum of Rs.7,50,000/- was allotted and transferred to the TP Account of the said society without noting the transfer credit numbers. Taking advantage of that position, the first accused obtained cheque book from the treasury and presented the cheque No.561211 for Rs. 3,00,000/- on 11.8.1997 by affixing the signature and seal of the Secretary of the society and forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and presented the same to the District Treasury for encashment and the 8th accused, who was in charge of TPA section clerk, entered details of the forged cheque in TPA Ledger No.3604 of the society and the third accused, as passing officer, passed the cheque for payment to enable the first accused to obtain the amount and the first accused withdrew the amount of Rs.3,00,000/- on 11.8.1997 from the treasury. Again the first accused, Crl.A.No.1817/2009 & Con.Cases 16 in the said capacity, presented another cheque No.571212 for Rs. 4,00,000/- on 14.8.1997 by fixing the signature and seal of the Secretary of the Society and forging the signature and seal of the General Manager District Industries Centre, Thiruvananthapuram, presented the cheque for collection at the District Treasury, Thiruvananthapuram and the 9th accused, who was in charge of TPA section clerk, wrote the details of the forged cheque in the TPA Ledger No.3604 of the District Treasury, Thiruvananthapuram and the 4th accused as passing officer, passed the cheque for payment to enable the first accused to withdraw the amount and accordingly, the first accused had obtained an amount of Rs. 4,00,000/- on 14.8.1997 from the treasury by illegal means. Again the first accused, presented the cheque No.571213 for Rs.3,50,000/- on 12.9.1997 by affixing the signature and seal of the Secretary of the society and also by forging the signature and seal of the General Manager, District Industries Centre, Thiruvananthapuram and the 7th accused, who was in charge of TPA Ledger No.3604, entered the details of the forged cheque in the concerned register and the 4th accused, as passing officer, passed the cheque for payment to enable the first accused to withdraw the amount and accordingly, the first accused withdrew the amount of Rs.3,50,000/- on 12.9.1997 from the Crl.A.No.1817/2009 & Con.Cases 17 treasury and thereby caused loss to the Government and all the accused on account of their criminal conspiracy hatched between the period from 27.8.1997 to 12.9.1997, accused Nos. 4, 7 and 9 passed three forged cheques presented by the first accused by misusing their official position and creating false entries in the account of the treasury so as to enable the first accused to encash and to misappropriate a total amount of Rs.10,00,000/- from TPA Ledger No.3604 of District Treasury, Thiruvananthapuram and thereby, all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
15. The case was originally registered by the Cantonment police, Thiruvananthapuram on 12.9.1997 as Crime No.161 of 1997 on the basis of a written complaint submitted by PW1, the then District Treasury Officer,Thiruvananthapuram and the preliminary investigation was conducted by CW46, the Sub Inspector of Police, Cantonment Police station and as per the direction of the Director, VACB, Thiruvananthapuram, the case was re registered as Crime No.11 of 1998 of VACB, Thiruvananthapuram by CW47. The investigation was conducted by CW48 and completed by CW50, the Inspector of Crl.A.No.1817/2009 & Con.Cases 18 Police, VACB, Southern Range. After completion of the investigation, CW51 obtained sanction and submitted final report in this case.
16. After submitting the final report, the case was taken on file as C.C.No.14 of 2006 by the Special Judge, Thiruvananthapuram. When the accused appeared, after hearing both sides, charge under section 13(1)(d) read with Section 13(2) of the Indian Penal Code, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian penal Code was framed against all the accused persons and the same was read over and explained to them and they pleaded not guilty.
17. After framing charge in all these cases, accused 1 to 10 filed separate petitions praying for these cases to be tried jointly. Since the Special Judge was satisfied that no prejudice will be caused to the accused by joint trial of all these cases and since common evidence will have to be adduced in all these cases and the documents to be relied on are also common, the Special Judge allowed the applications and all these cases were tried jointly and evidence was taken in C.C.No.11 of 2006. The Special Judge had framed the following points for consideration in all these cases.
i. Whether the accused were public servants on the date of the alleged offence and if so whether thee is valid sanction as provided by Crl.A.No.1817/2009 & Con.Cases 19 section 19(1) of the P.C. Act, 1988 to prosecute the accused?
ii. Whether the accused by corrupt or illegal means obtained for themselves any valuable thing or pecuniary advantage or misappropriated the amount?
iii. Whether the accused cheated and thereby dishonestly induced the person deceived to deliver any property?
iv. Whether the accused made any false document or part of a document with intend to cause damage or injury to public or to any person or to support any claim or title or to cause any person to part with property?
v. Whether the accused committed forgery intending that the document forged shall be used for the purpose of cheating?
vi. Whether the accused fraudulently or dishonestly used as genuine any document which he knows or has reason to believe to be forged document?
vii. Whether the accused being a clerk, officer or servant acting in the capacity of the clerk or officer willfully and with intent to defraud, destroyed, altered, mutilated or falsified any document or account willfully and with intent to defraud makes or abets or made any false entry in the documents or accounts?
Crl.A.No.1817/2009 & Con.Cases 20
viii. Whether the aforesaid acts were committed by the accused as a result of the criminal conspiracy entered by them?
ix. What are the offences, if any committed by the accused and what is the sentence to be passed?
18. In order to prove the case of the prosecution, Pws 1 to 28 were examined and Exts.P1 to P144 and Mos 1, 1(a) and 2 were marked on the side of the prosecution. The third accused was discharged in all these cases as case against him was quashed by this court and the 9th accused was discharged on the basis of the application filed by him in C.C.No.10 of 2006 to C.C.No.13 of 2006 and he faced trial as 9th accused only in C.C.No.14 of 2006. After closure of the prosecution evidence, the accused were questioned under section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and they denied all the incriminating circumstances brought against them in the prosecution evidence. The first accused has submitted that the first accused has not committed any offence and he had not submitted any forged documents to withdraw the amount. On account of the political enmity, he has been falsely implicated in the case. Accused 2, 4 and 5 to 10 submitted that they have not committed any offence and they have verified the documents as being done in the usual course and since there was Crl.A.No.1817/2009 & Con.Cases 21 amount in the TP Account Ledger of the society, they passed the cheque in the usual course and there was no conspiracy and in order to protect some higher officials, who were responsible for the irregularity in the payment of the amount and were responsible for making false entry in the account book, so as to enable the first accused to withdraw the amount, they have been falsely implicated in the case. There was no criminal conspiracy hatched between the first accused and these accused persons and if at all there was any fault, it is only a procedural irregularity amounting to dereliction of duty, not as such a criminal misconduct and they have been falsely implicated in the case. No defence evidence was adduced on their side except marking of Exts.D1 to D4(a). After considering the evidence on record, the Special Judge found the sole accused in C.C.No.9/2006 and the first accused in other cases guilty under section 13(1)(c) read with section 13(2) of the P.C. Act, 1988 and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs.22,000/-, in default to undergo rigorous imprisonment for six months more.
19. In C.C.No.10 of 2006, the Special Judge found that accused 2, 4 to 8 and 10 not guilty for the offence under section 13(1)(d) read with section 13(2) of the P.C.Act, 1988 and sections Crl.A.No.1817/2009 & Con.Cases 22 465, 468, 471, 477 A, 420 and 120 B of the Indian Penal Code and acquitted them of those charges under section 248(1) of the Code, but found the first accused guilty under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477 A and 420 of the Indian penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for six months more under section 420 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under section 465 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for six months under section 468 of the Indian penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for Crl.A.No.1817/2009 & Con.Cases 23 two years and also to pay a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for six months under section 477 A of the Indian Penal Code and directed the substantive sentences to run concurrently.
20. In C.C.No. 11 of 2006, the Special Judge found accused 2, 4 to 8 and 10 not guilty for the offences under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian penal Code and acquitted them of the charge under section 13(1)(d) red with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477 a, 420 and 120 B of the Indian Penal Code and acquitted them of those charges under section 248(1) of the Code. The Special Judge found the first accused guilty for the offence under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A and 420 of the Indian Penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months Crl.A.No.1817/2009 & Con.Cases 24 under section 420 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two months under section 465 of the Indian penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 468 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo rigorous imprisonment for six months under section 477A of the Indian Penal Code and directed the substantive sentences to run concurrently.
21. In C.C.No. 12 of 2006, the Special Judge found accused Nos. 4 to 8 and 10 not guilty for the offences under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477 A, 420, 120 B of the Indian Penal Code and acquitted them of that charge under section 248(1) of the Code, but found accused Nos. 1 and 2 guilty for the offence under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code and convicted them Crl.A.No.1817/2009 & Con.Cases 25 thereunder and sentenced the first accused to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,50,000/-, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2 lakhs, in default to undergo rigorous imprisonment for six months under section 420 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under section 465 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,50,000/-, in default to undergo rigorous imprisonment for six months under section 468 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2 lakhs, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,50,000/-, in default to undergo rigorous imprisonment for six months under section 477 A of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under section 120 B of the Indian Penal Code and directed the substantive sentences to run concurrently. Crl.A.No.1817/2009 & Con.Cases 26 The second accused was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.4,000/-, in default to undergo rigorous imprisonment for six months under section 120 B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.3,000/-, in default to undergo rigorous imprisonment for six months under section 468 and further sentenced to undergo rigorous imprisonment for two yeas and also to pay a fine of Rs.3,000/-, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs.3,000/-, in default to undergo rigorous imprisonment for six months under section 477 A of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under section 120 B of the Indian Penal Code and directed the substantive sentences to run concurrently.
22. In C.C.No.13 of 2006, the Special Judge found accused Nos. 4 to 8 and 10 not guilty under section 13(1)(d) read with Crl.A.No.1817/2009 & Con.Cases 27 section 13(2) of the P.C. Act and under sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code and acquitted them of that charge under section 248(1) of the Code, but found accused 1 and 2 guilty under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code and convicted them thereunder. The first accused was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2 lakhs, in default to undergo rigorous imprisonment for six months under section 420 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under section 465 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2 lakhs, in default to undergo rigorous imprisonment for six months under section 468 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay fine of Rs. 2 lakhs, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further Crl.A.No.1817/2009 & Con.Cases 28 sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 477A of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under section 120 B of the Indian Penal Code and directed the substantive sentences to run concurrently. The second accused was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for six months under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 420 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under section 465 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 468 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.One lakh, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further sentenced to Crl.A.No.1817/2009 & Con.Cases 29 undergo rigorous imprisonment for two years and also to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for six months under section 477A of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under section 120 B and directed the substantive sentences to run concurrently.
23. In C.C.No.14 of 2006, the Special Judge found accused Nos. 2 and 4 to 10 not guilty for the offences under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 and 120 B of the P.C. Act and acquitted them of those charges under section 248(1) of the Code. The first accused was found guilty for the offence under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477A, 420 of the Indian Penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2 lakhs, in default to undergo rigorous imprisonment for six months and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 3 lakhs, in default to undergo rigorous imprisonment for six months under section 420 of the Indian Penal code and further sentenced to undergo rigorous imprisonment for two years under Crl.A.No.1817/2009 & Con.Cases 30 section 465 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 3 lakhs, in default to undergo rigorous imprisonment for six months under section 468 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2 lakhs, in default to undergo rigorous imprisonment for six months under section 471 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for six months under section 477A of the Indian Penal Code and directed the substantive sentences to run concurrently.
24. Against the order of conviction passed in C.C.No 9 of 2006, the sole accused in that case filed Crl.A.No.1817 of 2009. Aggrieved by the order of conviction passed by the court below, the first accused in C.C.No.10/2006 filed Crl.A.No.1818 of 2009, while the State filed Crl.A.No.280 of 2012 against the order of acquittal passed against accused Nos. 2, 6, 8 to 10.
25. Against the order of conviction passed against the first accused in C.C.No.11 of 2006, he filed Crl.A.No.1830 of 2009, while the State filed appeal against acquittal of accused Nos. 2, 6, 8 and 10 as Crl.A.No.1947 of 2009. Crl.A.No.1817/2009 & Con.Cases 31
26. Against the order of conviction passed in C.C.No.12 of 2006, the first accused filed Crl.A.No.1833 of 2009 and second accused filed Crl.A.No.1714 of 2009, while the State filed Crl.A.No.1948 of 2010 against the order of acquittal of accused Nos. 4 to 8 and 10. As against the conviction and sentence in C.C.No.13 of 2006, the first accused filed Crl.A.No.1829 of 2009 and second accused filed Crl.A.No.1719 of 2009, while the State filed Crl.A.No.1476 of 2011 against the order of acquittal of other accused namely accused Nos.4 to 8 and 10.
27. In C.C.No.14 of 2006 as against the order of conviction, the first accused filed Crl.A.No.1826 of 2009, while the State filed Crl.A.No.1231 of 2013 as against the order of acquittal against accused 2, 4 to 8 and 10. Since all these appeals arise out of a common judgment, this court also decided to dispose of these appeals by a common judgment.
28. The case was heard and taken for orders earlier and thereafter when it was reopened for further hearing, learned counsel for the appellant in Crl.A.No.1833 of 2009 and also the appellant in Crl.A.No.1817 of 2009, Crl.A.No.1830 of 2009, Crl.A.No.1829 of 2009, Crl.A.No.1826 of 2009 and Crl.A.No.1818 of 2009 submitted that the appellant in these cases, who is the sole accused in C.C.No.9 of Crl.A.No.1817/2009 & Con.Cases 32 2006 and first accused in other cases died and this was confirmed by the report of the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thiruvananthapuram that he died on 15.7.2015. Since the case was fully heard and taken for judgment earlier and the counsel for the appellant in these cases also submitted that the case can be disposed of on merits as the legal representatives are not interested in coming forward to get themselves impleaded and fine is also imposed as part of the sentence, this court felt that these appeals can be disposed of on merits as regards the deceased appellant as well.
29. Heard Sri. M. Sreekumar, learned counsel appearing for the first accused in the lower court and appellant in the respective appeals filed by him, learned Public Prosecutor- Sri. Rajesh Vijayan and Sri.R.T.Pradeep, learned counsel appearing for the second respondent in Crl.A.No.1947/2010, first respondent in Crl.A.No.1476/2011 and second respondent in Crl.A.No.1231/2013, who was the 4th accused in the lower court, Smt. Dhanya P. Asokan, learned counsel appeared for the 10th accused in the lower court, who is the 4th respondent in Crl.A.No.1947 of 2010, third respondent in Crl.A.No.1948/2010, 6th respondent in Crl.A.No.1477/2011, 4th respondent in Crl.A.No.280/2012 and 6th respondent in Crl.A.No.1231/2013 and Crl.A.No.1817/2009 & Con.Cases 33 there was no representation for the 8th accused in the lower court, who was the third respondent in Crl.A.No.1947/2010, Sri. S. Saju and Senior counsel Sri. P. Santhalingam for the 5th accused in the lower court and the first respondent in Crl.A.No.1948/10 and Sri. S. Sharan appeared for 6th accused in the lower court and second respondent in Crl.A.No.1948/2010, third respondent in Crl.A.No.1476/11 and also for 4th respondent in Crl.A.No.1476/11, who is the 7th accused in the lower court, Sri. Johnson Gomez, learned counsel appearing for the 5th respondent in Crl.A.No.1476/2011, 3rd respondent in Crl.A.No.280/2012, who was the 8th accused in the lower court. Sri.S. Rajeev, learned counsel appearing for the second accused, who was the appellant in Crl.A.No.1714/09 and Crl.A.No.1719/09 and the first respondent in Crl.A.No.1947/10 and Crl.A.No.280/2012 and Sri. R. Bindu (Sasthamangalam) and Sri.Prasanth M.P appearing for the 5th respondent in Crl.A.No.1231/13, who was the 9th accused in the lower court.
30. Learned counsel for the first accused in all these cases submitted that some of the cheques said to have been forged, presented for collection and the amounts disbursed on the basis of those cheques were not really produced so as to prove that those Crl.A.No.1817/2009 & Con.Cases 34 cheques were really presented by the first accused after forging the signature of the General Manager of District Industries Centre, Thiruvananthapuram. Further the Special Judge was not justified in convicting the first accused for the offence under section 477 A of the Indian Penal Code or section 120 B of the Indian Penal Code as there is no evidence to show that he had any access to the document which were said to have been manipulated for the purpose of enabling the first accused to withdraw the amount without any allotment in those accounts. Further, there is no evidence adduced on the side of the prosecution to prove that at any point of time, these accused persons have met together to conspire about the alleged misappropriation and cheating by misusing their official position so as to attract the offence under section 120B of the Indian Penal Code. He had also argued that the document from the society of which the first accused was the Secretary were not seized so as to find out as to whether the amounts withdrawn have been entered in the registers. Further, there is no possibility of two accounts being opened in the name of the same society and under what circumstances such a thing had happened have to be explained by the prosecution. Since the first accused had no access to the document of the treasury, it cannot be said that he was aware of the manipulation made for the Crl.A.No.1817/2009 & Con.Cases 35 purpose of presenting the cheques and withdrawing the amount. The Special Judge should not have relied on the expert evidence alone to prove the forgery said to have been committed. It cannot be believed that the first accused will be able to withdraw the amount without any amount in the account and it is the higher officials of the treasury who were responsible for the same and in order to cover up their laches, he has been falsely implicated in the case. So according to him, the prosecution has not proved the case against the first accused beyond reasonable doubt and he is entitled to get acquittal. He had relied on the decision reported in Selvi J. Jayalalitha v. State (2001 KHC 2466) in support of his case.
31. Sri. S. Rajeev, learned counsel for the second accused, who is the appellant in two of the appeals arising out of C.C.Nos.12/2006 and 13/2006, submitted that having acquitted other accused persons, the Special Judge was not justified in convicting the second accused alone in C.C.Nos.12 of 2006 and 13 of 2006. Further, even prior to him, some persons have already allowed the withdrawal of the amount and he had only verified the accounts and passed the cheque as there was nothing to doubt about the genuineness of the entries made in the registers maintained in the treasury. If at all there was any fault, it can only be treated as dereliction of duty and it cannot be Crl.A.No.1817/2009 & Con.Cases 36 said that he had done that with malafide or dishonest intention to help any one that such things have been done. The observation made by the Special Judge that it was he who introduced the first accused to open the account and thereby he had personal acquaintance with the first accused is not correct. So under the circumstances, the court below was not justified in convicting him for the offence alleged.
32. The learned Public Prosecutor submitted that the evidence will go to show that without the connivance of the treasury officers namely the passing clerks or passing officers, such huge amounts could not have been withdrawn by the first accused. Further, if the signature of the General Manager of the District Industries Centre, Thiruvananthapuram was verified with the specimen signature card, it can be patently seen that it was not signed by him. So the procedure for withdrawing the amount has not been scrupulously followed. Further, in a Co-operative Society where an amount has to be withdrawn, there must be resolution of the society and recommendation by the Co-operative Inspector and sanction must be made for allotment of such amount by the General Manager of the District Industries Centre and bills have to be produced along with the proceedings of the District Industries Centre for allotting the Crl.A.No.1817/2009 & Con.Cases 37 amount and until signature of the Secretary of the society was counter signed by the General Manger of the District Industries Centre, the cheque could not be passed. Further all these procedures will take one week time, but in this case, the cheques were indiscriminately passed on the date of presentation itself. So all these things will go to show that there was conspiracy between the accused persons to help the first accused to withdraw huge amounts from the account in which there was so much allotment and causing loss to the Government and thereby the second accused as well other persons have committed the offence and having convicted the second accused in two cases namely C.C.Nos.12 of 2006 and 13 of 2006, the court below ought to have convicted accused Nos. 4, 5,8, 7 and 10 as well, but that was not done in this case. So he prayed for dismissing the appeals filed by the accused persons and allowing the appeals filed by the State and convicting the accused persons, who were acquitted by the court below.
33. On the other hand, learned counsel appearing for the acquitted accused, who were respondents in the appeal filed by the State submitted that there is nothing on record to show that they have committed any offence and they have connived with the first accused or second accused to make the payment and the court Crl.A.No.1817/2009 & Con.Cases 38 below was perfectly justified in coming to the conclusion that there was some laches on the part of the accused, who were acquitted in not following the procedure and that is not sufficient to convict them for the offences alleged, in the absence of any convincing evidence adduced on the side of the prosecution to convict them in the conspiracy and commission of the offences alleged. So according to them, the court below was perfectly justified in acquitting them and that order does not call for any interference.
34. The points that arise for consideration are :
i. Whether the court below was justified in holding that the sanction accorded for prosecuting the accused is proper and valid?
ii. Whether the court below was justified in holding in C.C.No.9 of 2016 that the accused by misusing his official position with dishonest intention misappropriated the amount and thereby committed the offence punishable under section 13(1)(c) read with section 13(2) of the P.C. Act?
iii. Whether in C.C.Nos.12/2006 and 13/2006 the court below was justified in holding that accused 1 and 2 have conspired together and created false documents and using the same as genuine documents cheated the government and withdrew amounts by making false entries in the relevant records and by misusing their Crl.A.No.1817/2009 & Con.Cases 39 official position, they have committed these acts and thereby committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471, 420, 477A and 120 B of the Indian Penal Code in C.C.Nos. 12 of 2006 and 13 of 2006?
iv. Whether the court below was justified in acquitting other accused persons namely accused 4 to 8 and 10 in these cases for the offences alleged?
v. Whether the court below was justified in convicting the first accused in C.C.Nos.10 of 2006, 11 of 2006 and 14 of 2006 for the offences under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471, 477 A and 420 of the Indian Penal Code.
vi. Whether the court below as justified in acquitting other accused persons in these three cases?
vii. Whether the sentence imposed in these cases are just and proper?
35. Point No.1:
It is an admitted fact the sole accused in C.C.No.9/2006 and the first accused in other case was working as the Secretary of the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Crl.A.No.1817/2009 & Con.Cases 40 Society Ltd.No.T.355, Vazhichal, Thiruvananthapuram at the time when the alleged offence was committed. It is also an admitted fact that accused 2 to 10 were also working as Junior Superintendent, Junior Accountant, Senior Accountant etc respectively of the District Treasury, Thiruvananthapuram during the relevant time. It is also an admitted fact that the first accused was removed from the service when the misappropriation committed by him was found out. So he was not working in the said society at the relevant time when the final report was filed. So the court below was perfectly justified in relying on the decision reported in Prakash Singh Badal v. State of Punjab (2007 (1) SCC Crl.193) and coming to the conclusion that there is no necessity to obtain sanction for prosecuting him. Further, no question was put to the investigating officer or the sanctioning authority for not obtaining sanction in this case. Similarly accused Nos. 2 to 5 were retired from service when the charge sheet was filed. So there is no necessity to obtain sanction for them as well. As regards accused Nos. 6 to 10 are concerned, sanction was granted by PW3 evidenced by Ext.P76 sanction to prosecute them not only for the offence under the P.C. Act but also for the offences under the Indian Penal Code though section 197 of the Code was not specifically mentioned therein. So non mentioning of section 197 of Crl.A.No.1817/2009 & Con.Cases 41 the Code alone is not sufficient to come to the conclusion that sanction is bad. No question was put to PW3 or other witnesses regarding non obtaining of sanction as regards accused Nos. 2 to 5. Section 19(3) of the P.C. Act and section 465 (1) of the Code say that no conviction or sentence can be interfered for want of sanction or error in sanction or irregularity in obtaining sanction unless miscarriage of justice has been established. Further in the case of cheating, falsification of account and forgery, it cannot be said that it was done in discharge of official duty or purporting to be in discharge of official duty as it cannot be said to be part of that duty and as such, no sanction under section 197 of the Code is required in such cases for prosecuting the accused, who were said to have committed such offence. Further, that point was not raised either before the court below or before this court and they have not established that any miscarriage of justice has been caused to them on account of the same as well. So under the circumstances, the court below was perfectly justified in coming to the conclusion that the sanction is not required for accused Nos. 1 to 5 and sanction accorded for accused 6 to 10 is proper and legal. The point is answered accordingly.
36. Point No.ii as regards C.C.No. 9 of 2006:
Crl.A.No.1817/2009 & Con.Cases 42
The case of the prosecution was that the sole accused in that case while working as Secretary of the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.T.355, Vazhichal, Thiruvananthapuram, misusing his official position as Secretary, dishonestly presented the withdrawal form No.041192 to the Treasury and withdrew Rs.20,800/- on 16.12.1994 from TP Account No.3604 of the society and misappropriated that amount. The fact that he was working as Secretary of the society from 11.3.1982 to 15.10.1997 was admitted by him. Further he was working in that capacity in the society was proved through Ext.P89
(a), minutes of the Board meeting proved through PW18, a Board member of the said society. It was also proved through PW18 that while the first accused was working as the Secretary of the society, he himself used to write the day book of the society and Exts.P90 and P91 are the day books of the society from 27.1.1981 and 25.4.1991 and those books were maintained by the sole accused in that case, who is the first accused in other cases as well and those hand writings in Exts.P90 and P91 were that of the sole accused in that case and first accused in other case, which was proved through these witnesses. PW19 was the present Secretary of the society and he had also stated that he knew the accused in that case and he can Crl.A.No.1817/2009 & Con.Cases 43 identify the hand writing and signature of the accused in that case. He had identified the handwriting of the accused in that case in Exts.P90 and P91 day books of the society. It is also an admitted fact that an amount of Rs.20,812/- was sanctioned for the said society from the District Industries Centre, Thiruvananthapuram. It is also an admitted fact that Ext.P4 account opening form was submitted by the first accused for the purpose of opening TP Account No.3604 and that account was opened on 13.12.1994. Ext.P2 is the TP Account Ledger of Serial Nos.3443 to 3624 and Ext.P2(a) is the relevant entry showing that on 13.12.1994.
37. The sole accused in the case, who is the first accused in other cases, submitted Ext.P4 opening form by remitting Rs.100/- and Ext.P5 is the specimen signature card containing the signature of the sole accused in this case and and first accused in other case and the General Manager of the District Industries Centre. It is also proved through PW1, the District Treasury Officer that on 15.12.1994 an amount of Rs.20,812/- was allotted from the District Industries Centre, Thiruvananthapuram in the name of the society in the aforesaid TP Account No.3604. The fact that the sole accused in this case and first accused in other case had submitted Ext.P4 account opening form and the TP Account No.3604 was opened in Crl.A.No.1817/2009 & Con.Cases 44 the name of the society was proved through PW23, the then Junior Accountant of the treasury. He had stated that it was in his handwriting that Ext.P2(a) entries were made. He had also deposed that he had made the entry regarding the receipt of an amount of Rs.20,812/- on 15.12.1994 from the said account.
38. PW5 is the General Manager of District Industries Centre from August, 1994 to 30.4.1996.PW5 had deposed that normally when the society requires amount, they will sent a proposal with the resolution of the Board members to the co-operative department and the Inspector of the Co-operative Society, after considering the the request, send the same to the District Industries Centre along with his recommendation and it is on that basis that, the amount will be sanctioned. It is also deposed by him that, there must be resolution by the society permitting the Secretary to withdraw the amount and it is on the basis of the resolution alone, the Secretary is entitled to withdraw the amount. It is also deposed by PW5 that, on the basis of Ext.P78 report given by PW8 to the District Industries Centre that the amount was sanctioned. Ext.P79 is the sanction given by the District Industries Centre in 1994 whereby an amount of Rs.20,812/- was allotted to the society. PW8 also deposed about these aspects, the procedures for withdrawal of the amount and Crl.A.No.1817/2009 & Con.Cases 45 allotment of the amount as deposed by Pws1, 5 and 8 were not challenged in the cross examination.
39. It is also an admitted fact that the account was opened on 13.12.1994 and the allotment was made on 15.12.1994. It has come out in the evidence of Pws 1 and 23 that, account opening was endorsed in Ext.P2(a) ledger and Ext.P5 is the specimen signature card of the Secretary and the President of the Society and it was counter signed by the General Manager, District Industries Centre, namely PW5 at that time. It is also brought out in evidence that, after drawing the cheque, it must be counter signed by the General Manger and only after counter signature if it is presented, the same can be withdrawn. But it is seen from Ext.P2(a) that the first accused had withdrawn Rs.20,800/- as per withdrawal form No.041192 and it will be seen from Ext.P27 that the withdrawal slip was issued to the sole accused in this case. It is also seen from the evidence that, the passing clerk, PW23, had entered the amount on the basis of the withdrawal form and it was passed by the passing officer namely the second accused. It is also seen from the evidence of PW23 that it was the second accused in the other cases, who had helped PW23, as he was a beginner in the section to make the entries in the relevant registers and he had identified the entry in Ext.P2(a) as signed by the Crl.A.No.1817/2009 & Con.Cases 46 second accused in the other cases namely Sri.P.C. Rajendran Nair. It is also seen from Ext.P27 - the stock register of cheque books and withdrawal form issued that Ext.P27(a-1) is the relevant entry showing that the disputed withdrawal form No.041192 was issued to the sole accused in this case and first accused in other case and he had identified his signature there. Ext.P21 is the Cashier's scroll and Ext.P21 (a) is the entry regarding payment of Rs.20,800/- given to the sole accused in this case from TP Account No.3604. Ext.P42 is the computer print out of the schedule of savings bank transaction (payment) and Ext.P42(a) entry will go to show that on 16.12.1994 the sole accused in that case, who is the first accused in the other cases, had withdrawn an amount of Rs.20,800/-. So it is clear from the evidence that the amount allotted to the society as sanctioned from the District Industries Centre, Thiruvananthapuram had been credited in the account of the society for the purpose of their use and being the Secretary of the society, using his position,signed the withdrawal form in the capacity of Secretary and withdrew the amount from the account of the society and thereby the sole accused in that case had come into possession of the amount belonging to the society. So it cannot be said that the amount belonging to the society was not entrusted to him or he had domain over the amount belonging Crl.A.No.1817/2009 & Con.Cases 47 to the society.
40. Further it will be seen from the evidence of Pws 5, 18 and 19, the then General Manager of District Industries Centre, Thiruvananthapuram, then Secretary and the present Secretary of the society that these amounts were not entered in the day books, Exts.P90 and P91 of the society, which were in the handwriting of the sole accused in that case. The accused had no explanation regarding the same as to what he had done with the amount as well. Once it is proved by the prosecution that the accused had come into possession or domain over the amount due to the society in the capacity of the Secretary of the society and he had not explained as to how he had utilized the amount and, if he had not properly accounted for the same, then it can only be presumed that he had dishonestly misappropriated the amount misusing his official position as a public servant namely the Secretary of the society. The Secretary of a Co- operative society has also come within the purview of public servant under the definition of public servant under section 2(c)(9) of the P.C. Act. The dictum laid down in the decision reported in Selvi Jayalalitha's case (supra) relied on by the counsel for the appellant in this case is not applicable to the facts of this case. So under the circumstances, the court below was perfectly justified in coming to the Crl.A.No.1817/2009 & Con.Cases 48 conclusion that the accused has while working as the Secretary of the society misusing his official position had misappropriated the amount belonging to the society, which was entrusted to him or having domain over the same, for his purpose and thereby he had committed the offence punishable under section 13(1)(c) read with section 13(2) of the P.C. Act and rightly convicted him for the said offence. I do not find any reason to interfere with the finding of the court below on this aspect.
41. Point No.xi in C.C.No.9/2013:
The court below had sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs.22,000/-, in default, to undergo rigorous imprisonment for six months more. Since the sole accused in this case is no more, the substantive sentence cannot be executed against him. I do not find any reason to reduce the fine amount as the court below had quantified the amount considering the amount misappropriated by him, which has to be recovered from him. Since he is no more, the default sentence also cannot be enforced against him. So the amount of fine imposed is hereby confirmed and that can be recovered from the estate of the deceased accused in this case in accordance with law which, if any in the possession of the legal heirs. So the Crl.A.No.1817 of 2009 is Crl.A.No.1817/2009 & Con.Cases 49 dismissed with the above observations.
42. Point Nos.i to viii in other appeals:
The first accused in these cases is the Secretary of Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.T.355, Vazhichal, Thiruvananthapuram and accused 2 to 10 are the treasury officials, who were either discharged their duty as passing clerks or passing officers in effecting the transaction. According to the prosecution, the first accused with the connivance of the treasury officials namely accused 2 to 10, made some substantial manipulation in the TP Account Nos.3604 and 3770 and made to appear that huge amount has been transferred or allotted or credited in the above accounts in the name of the society from the District Industries Centre, which was not really allotted or transferred or credited and misusing the seal and signature of the General Manager of District Industries Centre, he had presented Cheque No.072026 dated 30.4.2006 for an amount of Rs.50,000/- in TP Account No.3770, which was entered in the concerned registers by the 8th accused as passing clerk, and the third accused as passing officer, passed the amount and the accused had withdrawn that amount. Further, he had also presented cheque No.072029 dated 5.6.1996 for an amount of Rs.50,000/- in the same manner Crl.A.No.1817/2009 & Con.Cases 50 and the 6th accused as the passing clerk, entered the details and the third accused as passing clerk had passed the cheque and the amount was withdrawn by the accused and thereby, an amount of Rs.One lakh was withdrawn by the accused unauthorizedly misusing his official position as Secretary of the society and misappropriated the amount for himself. This is in the case of prosecution in C.C.No.10 of 2006.
43. In C.C.No.11 of 2006 the case of the prosecution was that, on the basis of the conspiracy hatched between the first accused and the other accused persons, the first accused had presented Cheque No.072032 dated 9.8.1996 for an amount of Rs. 4 lakhs, forging the signature and seal of the 5th accused, the General Manger of the District Industries Centre, Thiruvananthapuram and this was entered in the concerned register by the 8th accused as passing clerk and the same was passed by the third accused as passing officer and the amount was withdrawn by the first accused. Further Ext.P19 cheque No.072033 dated 16.8.1996 for an amount of Rs. One lakh was also presented by the first accused in the same manner and the 6th accused as passing clerk, entered the amount and the 5th accused as passing officer, passed the cheque and it was encashed by the first accused and thereby an amount of Rs.5 lakhs Crl.A.No.1817/2009 & Con.Cases 51 was unauthorizedly withdrawn from TP Account No.3770 of the society maintained in the District Treasury and thereby according to the prosecution, the accused had committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 471, 477 A, 420 and 120 B of the Indian Penal Code.
44. As regards C.C.No.12 of 2006 is concerned, pursuant to the criminal conspiracy entered between the first accused and other accused persons, the first accused had presented cheque No.571201 dated 17.8.1996 for Rs.4,50,000/- misusing the seal of the General Manager, District Industries Centre, Thiruvananthapuram and forging his signature and using the seal of the Secretary of the society, he signed in the capacity as Secretary and presented the same and the 5th accused as passing clerk and also passing officer in the absence of the third accused as he was on leave, passed the entire particulars in the register and passed the cheque enabling the first accused to withdraw an amount of Rs.4,50,000/- from TP Account No.3604. Similarly, the first accused had presented Ext.P7 cheque No.571204 for an amount of Rs. 4 lakhs dated 26.9.1996 and it was entered by the 6th accused as passing clerk and passed by the third accused as passing officer enabling the first accused to withdraw the amount. Crl.A.No.1817/2009 & Con.Cases 52 Similarly, the first accused had presented Ext.P9 cheque No.571207 dated 26.9.1996 for an amount of Rs.15,000/- forging the seal and signature of the General Manager, District Industries Centre, Thiruvananthapuram and misusing his official position, the Secretary of the society put his signature in that capacity and these particulars in the cheque were entered in the respective registers by the 6th accused and second accused as passing officers passed the amount and enabled the first accused to withdraw an amount of Rs.15,000/- and thereby unauthorizedly caused a loss of Rs.8,65,000/- to the exchequer and thereby by all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 and sections 465, 468, 477 A, 471, 420 and 120 B of the Indian Penal Code.
45. As regards the case in C.C.No.13 of 2006, in pursuance to the conspiracy, he presented the cheque No.571208 dated 20.1.1997 for Rs.4 lakhs forging the signature and seal of the General Manager District Industries Centre, Thiruvananthapuram and presented the cheque for enacashment and 6th accused as passing clerk entered the details in the respective registers and 5th accused as passing officer, passed the cheque and the first accused had withdrawn the amount. He had also presented Ext.P12 cheque Crl.A.No.1817/2009 & Con.Cases 53 No.571209 dated 30.7.1997 for an amount of Rs. 4 lakhs and the 7th accused had entered the details and the second accused as passing officer, passed the cheque and first accused had withdrawn an amount of Rs. 4 lakhs. Similarly, the first accused had presented Ext.P13 cheque No.571210 dated 1.8.1997 for Rs.4 lakhs in the same fashion and the 6th accused as passing clerk, entered the same in the register and it was passed by the 4th accused as passing officer and the amount as withdrawn by the first accused. All these amounts were withdrawn from TP Account No.3604 opened in the name of the society without necessary allotment in that account and thereby, all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act and Sections 465, 468, 471, 477A, 420 and 120 B of the Indian Penal Code.
46. As regards C.C.No.14 of 2006 is concerned, pursuant to the criminal conspiracy mentioned above, the first accused had presented Ext.P14 cheque No.571211 dated 11.8.1997 for Rs. 3 lakhs in the same fashion mentioned above and this was entered by the 8th accused and the third accused had passed the same as passing officer and the first accused had withdrawn the amount. Similarly, the first accused had presented Ext.P15 cheque No.571212 dated 14.8.1997 for Rs. 4 lakhs in the same manner and 9th accused as passing Crl.A.No.1817/2009 & Con.Cases 54 clerk, entered the same and 4th accused as passing officer, passed the cheque and the first accused had withdrawn the amount. Again the first accused had presented Ext.P16 cheque No.571213 dated 1.8.1997 for Rs.3.5 lakhs in the same manner and the 7th accused as passing clerk entered the details in the concerned ledger and the 4th accused as passing officer passed the same and enabled the first accused to withdraw an amount of Rs.3.5 lakhs from T.P Account No.3604 without any allotment in the account. These amounts were withdrawn from TP Account No.3604 opened in the name of the society and on account of the act of the accused persons, an amount of Rs.10,50,000/- was withdrawn by the first accused from that account without any allotment causing loss to the Government and thereby all of them have committed the offences punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, 1988 andsections 465,468, 471, 477A, 420, 120 B of the Indian Penal Code.
47. It is clear from the evidence of PW1 - the treasury officer, PW5- the General Manager of District Industries Centre, PW6-the successor of PW5 in District Industries Centre, Thiruvananthapuram, and PW7 - the person in charge of General Manager, District Industries Centre, Thiruvananthapuram when regular General Manager is on leave that except an amount of Rs.20,812/- in T.P Crl.A.No.1817/2009 & Con.Cases 55 Account No.3604 and Rs.1,50,000/- in T.P. Account No.3770, no other amounts were allotted to the Alachalkonam Harijan Handloom Weaver's Industrial Co-operative Society Ltd.No.T.355, Vazhichal, Thiruvananthapuram, of which the first accused was the Secretary. It is also clear from their evidence that neither the society nor the first accused had obtained any sanction from the General Manager of District Industries Centre, Thiruvananthapuram for withdrawing the amounts. They have categorically stated that except Exts.P64 and P65 cheque No.072031 and 072035 respectively for Rs.30,000/- and Rs.25,000/-, no other cheques were permitted to be withdrawn by them. In those cheques, the signature of the General Manager was admitted by Pws5 and 6. The seal seen in those cheques of General Manager, District Industries Centre, Thiruvananthapuram was admitted by them as the seal of the District Industries Centre and they have categorically stated that the disputed cheque No.571201 dated 17.8.1996 for Rs.4,50,000/-, Cheque No.571204 dated 29.9.1996 for Rs.4 lakhs (Ext.P7), cheque No.571207 dated 24.12.1996 for Rs.4 lakhs (Ext.P9), cheque No.571208 dated 20.1.1997 for Rs. 4 lakhs, cheque No.571209 dated 30.7.1997 for Rs. 4 lakhs (Ext.P12), cheque No.571210 dated 1.8.1997 for Rs. 4 lakhs (Ext.P12), cheque No.571211 dated 11.8.1997 for Rs.3 lakhs and Crl.A.No.1817/2009 & Con.Cases 56 cheque No.571212 dated 14.8.1997 for Rs. 4 lakhs (Ext.P15) and cheque No.571213 dated 12.9.1997 for Rs.3,50,000/- (Ext.P16) were not counter signed by the General Manager, District Industries Centre and the seal found on those cheques were not that of the General Manager, Industries Centre and the signatures found on those cheques were not that of the General Managers namely Pws 5, 6 and 7. They have categorically stated that except the letters GM in the seal, all other letters were small letters in the seal used by the Centre, wheres as in the disputed cheques, all the letters were capital letters. Though it was contended by the counsel for the accused that without the connivance of PW1 - the treasury officer, TP Account No.3770 could not be opened, it is seen from the evidence that those things will not reach the Treasury Officer and only the section officer in charge of S.B. Account alone will be responsible for the same. It is also brought out in the evidence of Pws 5, 6, 7 and 8 that normally in the case of Treasury Public Account, only one account will be opened in the name of the concern or society, but in some cases where different amounts will have to be alloted from different Government Account namely the State Government Account and the Central Government Account, some times more than one account will be opened in the name of the society. Further the fact Crl.A.No.1817/2009 & Con.Cases 57 that an amount of Rs.20,812/- was alloted to TP Account No.3604 and Rs.1,50,000/- was allotted to TP Account No.3770 was not disputed by them. So opening of two accounts in the name of the society cannot be said to be without the knowledge of the society and the District Industries Centre. Further, it will be seen from the evidence of Pws, 1, 4 and 9 that the amount credited as Rs.4,67,000/- on 18.7.1996, Rs.4 lakhs on 30.8.1996, Rs.3,98,000/- on 28.12.1996 and Rs.15,00,000/- on 31.3.1997 and Rs.7 lakhs on 21.8.1997 were not in fact the amounts really sanctioned by the District Industries Centre and there was no Head Account Number or Transfer Credit Number mentioned against these entries. But the prosecution has failed to prove as to who had made these entries in the respective registers. It will be seen from Ext.P83 MDA Register maintained in the District Industries Centre, Thiruvananthapuram also that these amounts were not really sanctioned from their office. This is proved through PW5. PWs 5 and 6 have proved MO1 series and MO2 are the seals used in the District Industries Centre, which were produced before the police authorities. The fact that withdrawal slip No.041192 was prepared by PW23, Sri. P.L. Saju, a clerk and passed by the second accused as passing officer from TP Account No.3604 and Cheque No.072026 dated 30.4.1996 for Rs.50,000/- Crl.A.No.1817/2009 & Con.Cases 58 was entered by the 8th accused and passed by the third accused and cheque No.072029 dated 5.6.1996 for Rs.1,50,000/- was entered by the 6th accused as passing clerk and the third accused as passing officer in C.C.No.10 of 2006 from TP Account No.3770 and cheque No.072032 dated 9.8.1996 for Rs. 4 lakhs entered by the 8th accused as passing clerk and passed by the third accused as passing officer and cheque No.072033 for Rs.One lakh dated 16.8.1996 (Ext.P19) was entered by the 6th accused as passing clerk and passed by the 5th accused as passing officer from TP Account No.3770 as involved in C.C.No. 11 of 2006 and cheque No.571201 dated 17.8.1996 for Rs. 4,50,000/- was entered by the 5th accused as he was in charge of both the passing clerk and passing officer on that day and cheque No.571204 dated 26.9.1996 for Rs.4 lakhs (Ext.P7) was entered by the 6th accused as passing clerk and passed by the third accused as passing officer and cheque No.571207 dated 26.9.1996 for Rs.50,000/- (Ext.P9) entered by the 6th accused as passing clerk and passed by the second accused as passing officer from TP Account No.3604 involved in C.C.No.12 of 2006 and cheque No.571208 dated 20.1.1997 for Rs. 4 lakhs was entered by the 6th accused as passing clerk and passed by the 5th accused as passing officer and cheque No.571209 dated 13.7.1996 for Rs.4 lakhs Crl.A.No.1817/2009 & Con.Cases 59 (Ext.P12) was entered by the 7th accused as passing clerk and passed by the second accused as passing officer and cheque No.571210 dated 1.8.1997 for Rs.4 lakhs (Ext.P13) was entered by the 6th accused as passing clerk and passed by the 4th accused as passing officer from TP Account No.3604 involved in C.C.No.13 of 2006 and cheque No.571211 dated 11.8.1997 for Rs. 3 lakhs (Ext.P14) entered by the 8th accused as passing clerk and passed by the third accused as passing officer, cheque No.571212 dated 14.8.1997 for Rs.4 lakhs (Ext.P15) was entered by the 9th accused as passing clerk and passed by the 4th accused as passing officer and cheque No.571213 dated 1.8.1997 for Rs.3.5 lakhs (Ext.P16) was passed by the 7th accused as passing clerk and passed by the 4th accused as passing officer from TP Account No.3604 involved in C.C.No.14 of 2006 and all these cheques were presented by the first accused and withdrawn by him was proved through the prosecution witnesses and those aspects were not seriously disputed by accused 2 to 10 as well.
48. Though the first accused had denied involvement in the presentation of the cheque and withdrawal of the cheque, the evidence of PW24, the handwriting expert coupled with Ext.P99 expert report and the signatures seen in the disputed cheques, which were seized and produced from the office of the Accountant General will go to Crl.A.No.1817/2009 & Con.Cases 60 show that those handwritings and signatures were that of the first accused and it was he who had presented the cheques and withdrawn the amounts. The evidence of the Secretaries of the society namely Pws 18, 19 and Co-operative Inspector - PW8 will go to show that the handwriting and signature in the disputed cheques which were produced were that of the first accused. The evidence of the cashier of the District Treasury during those period and the scrolls of the cashiers/passing officers will go to show that these cheques were presented, passed and encashed in the name of the first accused. It is seen from the documents produced from the treasury that the withdrawal slip and the cheque book containing these cheque leaves were obtained by the first accused in the capacity as Secretary of the society. It is also seen from the evidence of the society officials and Co-operative Inspector that these amounts were not sanctioned by the society and no resolutions were passed in this regard and the first accused was not authorized to withdraw the amounts as well and those amounts were not credited in the account of the society. The evidence of the society office bearers and also the evidence adduced on the side of the treasury officials and also the expert - PW24 that the handwriting in the TP Account ledgers making the entries of the amounts which were not really allotted to the society is not helpful to Crl.A.No.1817/2009 & Con.Cases 61 prove as to in whose handwriting these entries were made. Similarly an amount of Rs.1,50,000/- which was credited in TP Account No.3770 was corrected as Rs.7,50,000/- and author of correction also could not be found out. So under the circumstances, the court below was perfectly justified in coming to the conclusion that the prosecution has failed to prove beyond reasonable doubt that any of the accused persons have credited the amount and made false entries in the registers. Further the first accused cannot be held responsible for making correction or he cannot be said to be the person who had credited the amount in the registers as it is seen from the evidence that persons from out side cannot have access to the treasury documents. So it would be done only by the persons who are working in the treasury and not the persons from outside the treasury and the prosecution has failed to prove as to who was the person responsible for such correction as well.
49. It is clear from the evidence discussed above that the first accused as the Secretary of the society, misusing his official position as a public servant, presented the disputed cheques for huge amounts in TP Account Nos.3604 and 3770 and with the connivance of the treasury officials, withdrew huge amounts mentioned in those cheques and made use of the same for his purpose. It is also clear Crl.A.No.1817/2009 & Con.Cases 62 from the evidence that, none of these withdrawals were known to the society and it was not done with the approval of the society and the District Industries Centre knowing that there was no such allotment fraudulently and with dishonest intention prepared the false documents namely false cheques by forging the signature and seal of the General Manager, District Industries Centre and presented the cheques as genuine documents and obtained amounts from the treasury and misappropriated the same for his purpose and thereby he had committed the offences punishable under sections 465, 468, 471 and 420 of the Indian Penal Code. So the finding of the court below that the first accused had committed those offences in all these cases is perfectly justifiable.
50. There is no evidence as such to prove the conspiracy though the circumstances show that without the connivance of the treasury officials, this could not be achieved by the first accused. So though the prosecution was not able to prove the person who had made the entries in the treasury records so as to make it appear that huge amounts are available in TP Account Nos. 3604 and 3770 and enabled the first accused to present the false cheques and obtained benefits, it could only be presumed that this was also done at the instance of the first accused misusing his official position Crl.A.No.1817/2009 & Con.Cases 63 as Secretary of the society and misappropriated huge amount for his personal purpose and as such the court below was perfectly justified in convicting the accused for the offences under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465,468 471 and 420 of the Indian Penal Code in C.C.Nos.10/2006, 11/2006 and 14/2006 and the court below was perfectly justified in convicting the first accused for those offences in C.C.Nos.12 of 2006 and 13 of 2006 as well.
51. As regards accused Nos. 4 to 8 and 10 are concerned, who have been acquitted by the court below in all the cases, it may be mentioned here that there is nothing on record to show that these accused persons have got any acquaintance with the first accused and they have, using their acquaintance, made anything favourable to him. The evidence adduced from the prosecution was not sufficient to come to the conclusion that the first accused had met any of these accused persons for the purpose of creating the documents and knowing that there is false amount entered and allowed amounts to be paid to him as passing clerk as well as passing officer. Further it will be seen from the evidence that the 5th and the 4th accused have passed the amounts only on the days when the third accused was not on duty. So it cannot be said that they have Crl.A.No.1817/2009 & Con.Cases 64 got any knowledge about the correction in the accounts. It is true that if accused 4 to 8 and 9 were little careful in verifying the documents deligently, then this could have been avoided. Further, it will be seen from the evidence that on 12.9.1997 when the 4th accused has got doubt regarding genuineness of Ext.P16 cheque, he made complaint to PW1. It was on that basis that Ext.P1 complaint was filed and Ext.P1(a) First Information Report was registered by PW25 of Cantonment police station and the case was primarily investigated by him and thereafter since it was revealed that large scale manipulation was done and huge amounts were withdrawn, at the request of the treasury officials, the mater has been forwarded for vigilance investigation and accordingly Ext.P120 First Information Report VC 11/98 of VACB Thiruvananthapuram unit was registered by CW53 and further investigation was conducted by Pws26 and 27 and Ext.P142 report was filed by PW27 to include accused 2 to 10 also in the array of accused in the subsequent cases registered on the basis of which the split final reports filed. It is seen from Exts.P143 and P144 letters received from the District Treasury Officer and Director of Treasuries that investigation was taken over by the Vigilance Department and split final reports were filed in C.C.Nos.10 of 2006 to 14 of 2006 and in respect of the amount Crl.A.No.1817/2009 & Con.Cases 65 withdrawn on the basis of withdrawal slip C.C.No.9 of 2006 was taken on file against the first accused alone as sole accused in that case.
52. It may be mentioned here that PW15 was examined to prove that he knew the first accused and he was a taxi driver by profession and driving the vehicle KLK 6373 and he had seen some officials along with the first accused who had travelled in his car. But he had stated that he cannot identify those persons. He was examined to prove that the first accused was having some connection with accused 2 to 10, but his evidence was not helpful to prove that fact. PW21, who was working in the District Treasury, was examined to prove his connection with the first accused and the connection of first accused with accused 2 and 10 but he turned hostile and he did not support the case of the prosecution. He was also examined to prove that it was the 10th accused, who had introduced the first accused to him. But merely because the 10th accused is known to the first accused alone is not sufficient to come to the conclusion that he has got any role as none of the documents produced on the side of the prosecution are sufficient to connect the 10th accused in any way with the commission of the offence. Further there is no case for the prosecution that the 10th Crl.A.No.1817/2009 & Con.Cases 66 accused has got any control over any of documents in which the alleged manipulation was made and there is nothing on record to show that the corrections in the TP ledger containing Account Nos.3604 and 3770 were done in the handwriting of the 10th accused or with his connivance, some other officer had done the same as well. He had not worked in the savings bank account section which is dealing with these transactions. So even assuming that the first accused had some acquaintance with the 10th accused alone is not sufficient to come to the conclusion that the prosecution was able to establish the conspiracy between the first and 10th accused or the second accused in the commission of the crime. It is also seen from the evidence of PW21 that the 10th accused was in the district treasury only for sometime and thereafter he was transferred to the Additional Treasury, Thiruvananthapuram. Merely because he used to visit the District Treasury even after he was transferred to other treasury alone is not sufficient to come to the conclusion that he had role in the commission of the crime in order to help the first accused as claimed by the prosecution.
53. PW13, who was the Junior Accountant working in the District Treasury, was examined to prove that he knew the 10th accused and he was in a bad financial position at the time when he Crl.A.No.1817/2009 & Con.Cases 67 joined and thereafter he shifted his residence to a rented house, where he was living in a better position. He had also deposed that he had acquaintance with the first accused. It was he who introduced him as the leader of the Community Party of India and the Secretary of the society. He was examined also to prove that his mother had pledged certain gold ornaments in the society at Chirayinkeezh. On the particular day he along with the first accused with permission went out side in a scooter on 12.9.1997 to redeem the gold ornaments and his mother came there with them. But PW20, the Secretary of the society was examined to prove that one Omana had pledged some gold ornaments and two persons came to the society along with Omana and redeemed the gold ornaments. He could not identify those persons as who had come there with Omana. Even assuming that the evidence of PW13 is accepted, it may only be helpful to prove that the 10th accused had helped him to redeem the gold ornaments pledged by his mother. There is nothing on record to show that the 10th accused was aware of the misappropriation committed by the first accused and knowing that the amount given by the first accused was the amount misappropriated by withdrawing the amount from the treasury, he had paid the amount to his mother to redeem the gold ornament Crl.A.No.1817/2009 & Con.Cases 68 from the society. It cannot be said that he had any role in the commission of the crime unless it is proved by the prosecution about the role in preparing the documents or enabling the first accused to withdraw the amount from the treasury. So under such circumstances, the court below was perfectly justified in coming to the conclusion that the prosecution was not able to prove that the 10th accused had committed any offence and rightly acquitted him of the charged levelled against him in all the cases in which he was the accused.
54. As regards the second accused is concerned, he was the passing officer in charge of the Treasury Savings Bank Section on 12.12.1994 when Ext.P4 application for opening Account No.3604 was opened in the name of the society to be operated by the Secretary and the President namely the first accused and one Sumathi and it was counter signed by PW5, the General Manager of the District Industries Centre. Though the court below had observed in the judgment that it was the second accused who had introduced the first accused for opening the account, a perusal of Ext.P4 shows that there is nothing to indicate that it was he who had introduced him except the fact that he had put his signature as passing officer to enable the society to open the account. Further it will be seen from Crl.A.No.1817/2009 & Con.Cases 69 the evidence of PW23, P.L. Shaji that it was he who had entered Ext.P2(a) Entry that on 12.12.1994 when the account was opened and it was he who entered the amount of Rs.20,812/- on 18.12.1994 when the amount was allotted from the District Industries Centre to the society. When he written SBTR it was corrected as TC by 2nd accused. But that is not going to affect the nature of the transaction as opening of the account on that day was done in a proper manner and that is not sufficient to create any doubt or unholy alliance for the second accused with the first accused. Merely because the amount of Rs.20,800/- was passed by the second accused as passing officer on 16.12.1994 alone is not sufficient to come to the conclusion that he was responsible for or having any conspiracy with the first accused to enable him to withdraw the amount. It may be mentioned here that it was brought out from the evidence of Pws 1 and 23 that the third accused was the passing officer of the treasury during that time and it was in his absence either of leave or permission when he went outside, others were handling the work of passing officer. So it is also brought out in evidence that the amount of Rs.20,800/- was allowed to be withdrawn as per withdrawal slip which is involved in C.C.No.9 of 2006 happened to be passed by the second accused when the third Crl.A.No.1817/2009 & Con.Cases 70 accused was not in the office at that time and he was holding charge in his absence as authorized by PW1 either by a written order or orally as being done in temporary absence of the passing officer. Further it is also seen from the evidence that even in C.C.12 of 2006 the second accused had only passed Ext.P9 cheque for Rs.5,000/- as passing officer and in C.C.No.13 of 2006 a cheque for Rs. 4 lakhs namely Ext.P12 cheque. It is also brought out in evidence that those cheques were also passed by him at the time when the third accused was either on leave or went outside on permission and so that alone is not sufficient to come to the conclusion that he had connivance with the first accused in passing these cheques with any dishonest intention of helping the first accused in withdrawing the amount. It was also brought out in evidence that when amounts were there in the treasury account and if other things are normal, the possibility of passing the cheque is the usual thing. Further, the second accused is relying on the endorsement made by the passing clerk and he was only checking those things. It is also brought out in evidence that when the second account T.P.No.3770 was opened, they used to obtain subsequent signature of the person again but unfortunately neither the account opening form or any specimen signature could obtain were traced out and produced in Crl.A.No.1817/2009 & Con.Cases 71 court. Further, there is no dispute regarding the fact that though there is some irregularity in opening the second account in the name of the said society but there is no illegality in the same as some times when different amounts coming from different accounts of different departments such things used to happen as is evident from the evidence given by PW1, the District Treasury Officer and PW5, the General Manager of District Industries Centre. So under such circumstances, except the fact that if the second accused as passing officer in the section was diligent, he could have found out the discrepancies in the cheque and would have brought to the notice of the authorities to prevent misuse of cheque by the first accused, he had also done the same thing which other passing officers have done in passing the cheque. Further, there is no evidence to show that every time when the disputed cheques were passed, the first accused used go to the treasury and meet the second accused and the second accused had influenced the other officials who were responsible for entering the amount and passing the cheque in order to enable the first accused to withdraw the amount. The possibility of suspicion of the second accused on account of his acquaintance with the first accused may be possible, but for establishing his guilt that alone is not sufficient in the absence of any proof of his involvement and Crl.A.No.1817/2009 & Con.Cases 72 conspiracy of the first accused have committed these things and he cannot be convicted for the offences under sections 120 B, 465, 468,471, 477A, 420 of the Indian Penal Code and section 13(1)(d) read with section 13(2)of the P.C. Act as mere suspicion alone without evidence to prove his guilt beyond reasonable doubt and the finding of the court below on this aspect against the second accused in C.C.Nos.12 of 2006 and 13 of 2006 are unsustainable in law and the same is liable to be set aside and the second accused is entitled to get acquittal of those charges in those two cases. So conviction entered by the court blow against the second accused for the above offences in C.C.Nos.12 of 2006 and 13 of 2006 are set aside and he is acquitted of those charges giving him the benefit of doubt. Since the second accused was acquitted of the charges levelled against him, the finding of the court below that the first accused also committed the offence punishable under section 120 B of the Indian Penal Code in those two cases along with the second accused is unsustainable in law and the same is also liable to be set aside and the first accused is entitled to get acquittal of the charge levelled against him under sections 120 B in C.C.Nos. 12 of 2006 and 13 of 2006.
55. So the conviction of the second accused in C.C.Nos.12 of 2006 and 13 of 2006 for the offences under sections 120 B, 465, 468, Crl.A.No.1817/2009 & Con.Cases 73 471 and 477A of the Indian Penal Code and section 13(1)(d) read with Section 13(2) of the P.C. Act are liable to be set aside and he is entitled to get acquittal of those charges in those two cases. As regards the first accused is concerned, he is also entitled to get acquittal of the charge under sections 120B and 477A of the Indian Penal Code, but his conviction under section 13(1)(d) read with section 13(2) of the P.C. Act and under sections 465, 468, 471 and 420 of the Indian Penal Code are liable to be confirmed. The order of acquittal passed against other accused persons in C.C.Nos.10 of 2006 to 14 of 2006 are hereby confirmed.
56. Point No.vii.
Since this court found that the second accused is entitled to get acquittal of the charge levelled against him under section 13(1)
(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471, 420, 477 A and 120B of the Indian Penal Code, the sentence imposed against him for these offences is unsustainable in law and the same are hereby set aside.
57. As regards the first accused is concerned, he was acquitted of the charges levelled against him under section 477 A of the Indian Penal Code in C.C.Nos.10 of 2006, 11 of 2006 and 14 of 2006 and under sections 120 B and 477 A of the Indian Penal Code in Crl.A.No.1817/2009 & Con.Cases 74 C.C.No.12 of 2006 and 13 of 2006, the sentence imposed against him for those offences in those cases are unsustainable in law and the same are set aside. The order of sentence passed by the court below against the first accused in all cases, considering the nature of offences, the manner in which he has committed the offences and the amount misappropriated using forged cheques, cannot be said to be harsh or excessive.
58. It is settled law that in cases where persons found guilty of misappropriation of public funds misusing their official position and they were found guilty for the offence under the provisions of the P.C. Act, showing undue leniency will only lead to loss confidence of the public in the criminal justice delivery system. So I do not find any reason to interfere with the sentence imposed by the court below against the first accused in all these cases under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471 and 420 of the Indian Penal Code and they are hereby confirmed. Since he is no more, the substantive sentence and default sentence cannot be enforced against him and the fine can be recovered from his estate in the hands of the legal heirs in accordance with law.
59. In the result, Crl.A.No.1817 of 2009 is dismissed. The order of conviction and sentence passed by the court below against the Crl.A.No.1817/2009 & Con.Cases 75 appellant in that case in C.C.No.9 of 2006 under section 13(1)(c) read with section 13(2) of the P.C. Act are hereby confirmed. Since the appellant is no more, the substantive sentence and the default sentence cannot be enforced against him. The fine can be realized from his estate in the hands of the legal heirs in accordance with law.
60. Crl.A.No.1818 of 2009 is allowed in part and Crl.A.No.280 of 2012 are hereby dismissed. The order of acquittal passed by the court below against accused 2, 6, 8 to 10 is hereby confirmed. The order of conviction and sentence passed by the court below against the first accused under section 477A of the Indian Penal Code is set aside and he is acquitted of that charge giving him the benefit of doubt. But the order of conviction and sentence passed against him under sections 465, 468, 471 and 420 of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the P.C. Act are hereby confirmed. Since the first accused is no more, the substantive sentence and default sentence cannot be enforced against him, but the fine is directed to be realized from his assets in the hands of legal heirs in accordance with law.
61. Crl.A.No.1947 of 2010 is hereby dismissed while Crl.A.No.1830 of 2009 is allowed in part. The order of acquittal passed against accused 2, 6 and 8 to 10 in C.C.No.11 of 2006 is hereby Crl.A.No.1817/2009 & Con.Cases 76 confirmed. The order of conviction and sentence passed against the first accused in this case under section 477A of the Indian Penal Code is hereby set aside and he is acquitted of the charge giving him the benefit of doubt. But the order of conviction and sentence passed against the first accused in this case in respect of offences under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471 and 420 of the Indian Penal Code are hereby confirmed. Since he is no more, the substantive sentence as well as default sentence cannot be enforced against him, but the fine is directed to be realized from his estate in the hands of legal heirs as per law.
62. Crl.A.No.1719 of 2009 is allowed and Crl.A.No.1829 of 2009 is allowed in part and Crl.A.No.1476 of 2011 is dismissed. The order of conviction and sentence passed against the second accused in C.C.No.13 of 2006 is set aside and he is acquitted of the charges levelled against him giving him the benefit of doubt. He is set at liberty. The bail bond executed against him will stand cancelled. The order of conviction and sentence passed against the first accused under section 120 B and section 477 A of the Indian Penal Code is hereby set aside and he is acquitted of the charges levelled against him giving him the benefit of doubt, but the order of conviction and Crl.A.No.1817/2009 & Con.Cases 77 sentence passed against the first accused under section 13(1)(d) read with section 13(2) of the P.C. Act under sections 465, 468, 471 and 420 of the Indian Penal Code is hereby confirmed. Since the first accused is no more, the substantive sentence and default sentence cannot be enforced against him. The fine is directed to be realized from the estate in the hands of the legal heirs in accordance with law. The fine amount, if any, deposited by the 2nd accused is directed to be returned to him on making necessary application by him.
63. Crl.A.No.1714 of 2009 is allowed, Crl.A.No.1948 of 2010 is dismissed and Crl.A.No.1833 of 2009 is allowed in part. The order of conviction and sentence passed against the second accused in C.C.No.12 of 2006 for the offence under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468,471,477 A and section 120 B of the Indian Penal Code are hereby set aside and he is acquitted of the charges levelled against him giving him the benefit of doubt. He is set at liberty. The bail bond executed will stand cancelled. The order of acquittal passed by the court below against accused 4, 8 and 10 are hereby confirmed. The order of conviction and sentence passed against the first accused in the above case under sections 477 A and 120 B of the Indian Penal Code are hereby Crl.A.No.1817/2009 & Con.Cases 78 set aside and he is acquitted of the charges levelled against him giving him the benefit of doubt. But the order of conviction and sentence passed against him under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471 and 420 of the Indian Penal Code are hereby confirmed. Since he is no more, the substantive sentence and default sentence imposed against him cannot be enforced, but the fine is directed to be realized from his estate in the hands of his legal heirs in accordance with law. The fine amount, if any deposited by the 2nd accused is directed to be returned to him on making necessary application for this purpose.
64. Crl.A.No.1231 of 2013 is dismissed while Crl.A.No.1826 of 2009 is allowed in part. The order of acquittal passed by the court below against accused 2, 4, 7 to 10 in C.C.No.14 of 2006 is hereby confirmed. The order of conviction and sentence passed against the first accused in the above case under section 477 A of the Indian Penal Code is set aside and he is acquitted of the charge giving him the benefit of doubt. But the order of conviction and sentence passed against him under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 465, 468, 471 and 420 of the Indian Penal Code are hereby confirmed. Since he is no more, the substantive sentence and default sentence imposed against him cannot be enforced, but the Crl.A.No.1817/2009 & Con.Cases 79 fine can be directed to be realized from his estate in the hands of the legal heirs in accordance with law.
Though the second accused was acquitted in C.C.Nos.12 of 2006 and 13 of 2006, this will not prevent the Government from initiating other departmental disciplinary action against him and recovering the amount lost to the Government from him in accordance with law. The Government is at liberty to proceed against other acquitted accused as well to recover the amount departmentally in accordance with law.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge