Kerala High Court
K.A. Sivaraman vs State Of Kerala on 16 August, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934
CRL.A.No. 225 of 2000 (B)
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CC.6/1999 of THE INQUIRY COMMR.& SPL.JUDGE, THRISSUR
APPELLANT(S)/ACCUSED :
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K.A. SIVARAMAN,
FORMER PRESIDENT OF KODIKULAM
GRAMA PANCHAYATH.
BY ADVS.SRI.C.K.VIDYASAGAR
SRI.T.I.ABDUL SALAM
SRI.P.CHANDY JOSEPH
RESPONDENT(S)/COMPLAINANT :
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STATE OF KERALA, REP BY THE DY. SUPERINTENDENT OF
POLICE, V.A.C.B. IDUKKI, THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. NOUSHAD THOTTATHIL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DSV/-
P.S.GOPINATHAN, J.
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Crl.A.NO. 225 OF 2000
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Dated this the 16th day of August, 2012
J U D G M E N T
The appellant is the accused in C.C.No.6/1999 on the file of the Enquiry Commissioner & Special Judge, Thrissur. He was prosecuted by the Deputy Superintendent of Police Vigilance and Anti- Corruption Bureau, Idukki in Crime No.1/1995 alleging offence under Section 13 (1)(c) and (d) read with 13(2) of the Prevention of Corruption Act 1988 (PC Act) and Sections 409, 468, 471 and 477A of the Indian Penal Code (IPC). The allegation against the appellant is that during 1990-91, the appellant was holding the office of the President of the Kodikulam Grama Panchayath and as such he was a public servant in charge of various works under the Jawahar Yojana (JRY) Scheme and as such he was Crl.A.NO. 225 OF 2000 2 entrusted with an amount of Rs.1,07,119.80/- for certain road works. The works had to be done in accordance with the regulations and procedures and as per the manual (Exhibit P37). But he had violated all the regulations and procedures. He further forged a bill which was marked as Exhibit P35 for a sum of Rs.58,069.80/- purporting to be a bill for the purchase of 156Kgs of ASP Half (bitumen) without any purchase, but making entries in the cash book, stock register, etc. and committed breach of trust of Rs.58,069.80/-. He also committed misappropriation in respect of a sum of Rs.49,050/- by forging documents as if certain works were executed by nominees, but without engaging any nominee, falsified the records by forging the signatures as that of nominee and falsification of accounts. In total, an amount of Rs.1,07,119.80/- is alleged to Crl.A.NO. 225 OF 2000 3 have been misappropriated by falsification of accounts, forgery and using forged documents as genuine and also committed criminal misconduct.
2. In response to the process issued, the appellant entered appearance before the learned Special Judge. After hearing either side, a charge for the above mentioned offences was framed. When read over and explained, the appellant pleaded not guilty. Therefore he was sent for trial. He was tried jointly along with C.C.No.5/1999, accusing the very same offence during 1989-90. Evidence was recorded in C.C.No.5/1999. On the side of the prosecution PWs 1 to 25 were examined. Exhibits P1 to P76 were marked. During the course of recording evidence on the side of the prosecution, Exhibits D1 and D2 were marked. After closing the evidence of the prosecution, the appellant was Crl.A.NO. 225 OF 2000 4 questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence. He further advanced a case that he was falsely implicated due to political reasons. However, no other defence evidence was adduced.
3. On appraisal of the evidence the learned Special Judge arrived at a finding that the prosecution had not succeeded to establish the forgery as well as the misappropriation of a sum of Rs.49,050/- but had come to a finding that the appellant had committed falsification of accounts, criminal misconduct and breach of trust in respect of a sum of Rs.58,069/- covered by Exhibit P35 Bill. Consequently, the appellant was convicted for offences under Sections 13(1)(c) and (d) read with 13(2) of the PC Act and Sections 409, 471 and 477 A IPC. He was sentenced to rigorous imprisonment Crl.A.NO. 225 OF 2000 5 for four years and a fine of Rs.75,000/- under Sections 13(1)(c) read with 13(2) of the PC Act with a default sentence of rigorous imprisonment for 1= years, rigorous imprisonment for three years each under Section 13(1) (d) read with 13(2) of the PC Act, Sections 409 and 477 A IPC and rigorous imprisonment for one year for offence under Section 471 IPC. The sentences were ordered to run concurrently. Now this appeal assailing the above conviction and sentence.
4. I have heard Adv. Sri. C.K.Vidhyasagar, the learned counsel appearing for the appellant and Smt. A. Lowsy, the learned Government Pleader. Perused the judgment impugned as well as the evidence on record.
5. As mentioned earlier, there are two counts of charges. As regards the appropriation of a sum of Crl.A.NO. 225 OF 2000 6 Rs.49,050/- in paragraph 58 of the judgment, the trial court arrived at the following conclusion in favour of the appellant. Paragraph 58 reads as follows:
"58. So far as the non payment of the amount to the workers under the different works under JRY Scheme was concerned it could be seen that there is version before court by the witnesses that they have not received the amount; it could be also seen that they had denied the signature in the connected records indicating the payment. The over all assessment of the evidence would show that regarding the non payment of the amount to different persons as indicated from the evidence, in the light of total denial by the accused, it cannot be held that the prosecution has proved beyond reasonable doubt the case of non payment of the amount against the accused. Thus the allegation of misappropriation of Rs.49,050/- cannot be accepted to have been proved. As such the accused would entitle to the benefit of doubt, so far as the allegation in this regard is concerned."
6. Regarding the offence under Section 468 of Crl.A.NO. 225 OF 2000 7 the Indian Penal Code, the trial court in paragraph 61 arrived at the following conclusion. Paragraph 61 reads as follows:
"61. In respect of the offences alleged U/s 468 I.P.C. it could be seen that the evidence on record does not indicate the accused is proved to have committed the forgery though he was a privy to it. The reason for the manipulation of the records for the purpose of showing that the work was done through nominee was explained by him. Reckoning this aspect it could be seen that the accused is entitled to the benefit of doubt in respect of the offences punishable U/s 468 I.P.C. alleged by the prosecution."
In view of the findings in paragraph 61 quoted above, the prosecution case that Exhibit P35 was forged by the appellant, fails. The very case of the prosecution is that Exhibit P35 was forged by the appellant and using that forged documents he had Crl.A.NO. 225 OF 2000 8 made false entries in the account books and committed breach of trust in respect of a sum of Rs.58,069.80/-. Following are the discussion and conclusions arrived by the trial court regarding Exhibit P35 Bill in paragraphs 36 and 37. Paragraphs 36 and 37 read as follows:
"36. PW1, PW10 and PW22 adduced the evidence with respect to the bitumen stated to have been purchased by the panchayat and used for the work. Ext.P35 was the bill for Rs.58069.80 and PW10 who had done the work under Ext.P10 stated that the tar for the work was obtained by him and it was never supplied by the panchayat. PW22 on the basis of Ext.P67 and P68 contended that Ext.P35 bill found recorded by the panchayat was not the bill of the firm and the firm was existence only for 1 = years and P68 was the Bill book and they were not dealing with the ASP Half bitumen or direct bitumen and they did not supply the tar for work at all.
37. Ext.P35 was the bill No:114 from Vee Arr Enterprises, Thripunithura dated Crl.A.NO. 225 OF 2000 9 12-4-90 issued to the President of the Kodikulam panchayat. 94 barrels of ASP Half bitumen containing 156 Kg. was shown as sold for Rs.58069.80. Ext.P35 contains CST No:23765275 KGST No:23169829. Ext.P35 was seen affixed to Ext.P17 Stock register. Ext.P68 is the bill of the firm. According to PW22 the firm was not in existence as on 12-4-90. Ext.P68 would show that the last dealings by the firm was on 6-10-83. The Bill book contains a cancelled Bill No:7 dated 16-9-83. CST No: is 23165275 and KGST No:
is shown as 23160829. From the evidence of PW10 and 22 coupled with Ext.P35 and P68 it is evident that the tar used for the work was never purchased from Vee Arr Enterprises as alleged and there was no necessity for a local purchases. The evidence of PW10 would show that he had undertaken the work in which CW22 Thomas George was the nominee. According to him 35% of the tar was at this spot and he had further borrowed 30 barrels of tar from his concern. There were about 20 barrels of tar at the place and he was never paid any amount for the barrels of tar provided by him. It is also stated that Crl.A.NO. 225 OF 2000 10 he had never prepared any muster roll. It is his case that towards the work done Rs.112000/- is still due. Evidence of PW22, show that his wife was a partner of the firm Vee Arr Enterprises and after about 1 = years Vide Ext.P67 the firm closes down its business. It was also his case that Ext.P68 was the Bill book of the firm. The firm never delt with direct bitumen. But only with waste bitumen. Ext.P35 was not a bill issued from their firm and as on 12-4-90 the firm was not in existence and 10% CST collected was also not correct. His evidence would further show the firm had transaction only in respect of the bills in Ext.P68. His evidence also would show "Vee Arr Enterprises .K gIx_W partners I_K`?m ( address-W H?J_O_G_\o.""
The other discussions in the judgment impugned is relating to the evidence in C.C.No.5/1999 and relating to the other count of transaction which was found in favour of the appellant. Therefore, I am only considering the sustainability of the conviction on the basis of Exhibit P35 as considered by the trial Crl.A.NO. 225 OF 2000 11 court in the above paragraphs.
7. PW10 is the contractor who executed the work relating to Illichuvadu - Chengathoor - Panankunnu Road. Exhibit P10 is the file relating to the above work. The evidence of PW10 would show that one Thomas George, who was cited as witness No.22 in the charge sheet, was the nominee. Exhibit P10 would show that bitumen was used for the construction of the road. According to PW10, 30% of the bitumen was supplied by the Panchayath i.e., in 20 barrels and he had purchased 30 barrels from open market and a sum of Rs.1,12,000/- was due to be received from the Panchayath. His evidence is silent as to who supplied the bitumen. However, there is no mention that it was the appellant who had supplied the bitumen. Neither is there any evidence to conclude that Exhibit P35 Crl.A.NO. 225 OF 2000 12 was brought in the file by the appellant. Exhibit P12 and P15 would show that two other road works were also executed during the relevant period; namely, Naisseril-Kotta Road and Channathoor-Kaliyar Road. Exhibit P12 and P15 works relate to road works measuring 1,500 M2 each. Exhibit P12 relates to 4,200 M2 road work. Exhibit P55 and P58 would show that a sum of Rs.54,000/- was passed towards the value of the bitumen and that amount was withdrawn from the Bank by cheque bearing No.61386. The evidence on record did not suggest as to what was the total quantity of the bitumen required for the construction of the above three works. Though the Overseer and the Assistant Engineer were cited as Charge Witnesses No.10 and 11, for the best reason known to the prosecution they were not examined. The result is that no Crl.A.NO. 225 OF 2000 13 evidence was adduced as to how much quantity of bitumen was used for the construction of the above road works. PW25, the investigating officer would admit in cross-examination that the quality of the work was also examined. But there is no whisper that the road work was of pure quality. So it is to be concluded that there was no dispute regarding quality and required quantity of bitumen was used for the above road works. Therefore, it cannot be held that the appellant had misappropriated the entire amount of Rs.54,000/- withdrawn as per Exhibit P55 and P58. Since there is evidence lacking as to what was the quantity of bitumen used, it is rather difficult to arrive at a conclusion as to whether there was any misappropriation of the value of bitumen. There is no case for the prosecution that the value shown in Exhibit P35 is anything more Crl.A.NO. 225 OF 2000 14 than market value. What was the exact amount accounted towards the value of the bitumen is also not known as there is no evidence touching on that aspect. Therefore, I have to conclude that the trial court had not considered all these aspects. It blindly relied on Exhibit P35 and the amount covered by Exhibit P35 was found misappropriated. It appears that the trial court had given undue consideration to the evidence of PW22. PW22 would depose that he was the manager of Vee Arr Enterprises and Exhibit P35 appears to be one issued from the said firm. But such a document was never issued from the firm as it was closed as early as 1983. Whereas Exhibit P35 is dated 12/4/1990. Whatever it be, as mentioned earlier, the evidence of prosecution regarding the forgery was found against the prosecution by the trial court. There is also no case Crl.A.NO. 225 OF 2000 15 for the prosecution that the hand writing in Exhibit P35 is that of the appellant. No investigation was made by the prosecution as to who prepared Exhibit P35. So the appellant cannot be found fault with it. There is also no evidence to conclude that the value shown in Exhibit P35 was accounted in the cash book. It is adding to that the non-examination of the nominee who was supposed to execute Exhibit P10 work becomes relevant. What was the role of the nominee is not born out by any evidence. But the very case of the prosecution is that the work is to be executed by the nominee and Panchayath cannot execute the work. If the nominee had to execute the work and it is for him to purchase materials including bitumen. The appellant cannot be held liable. For failure to account between Panchayat and nominee, or with the contractor of the nominee, Crl.A.NO. 225 OF 2000 16 the appellant cannot be prosecuted so long as there is no case for the prosecution that the amount accounted is anything more than what is paid to the nominee.
8. A critical scrutiny of the evidence of PW22 would show that he was an estranged manager of the firm. Therefore, his evidence cannot be taken as gospel truth regarding the forgery of Exhibit P35. The prosecution has not cared to examine any of the partners or to seize the account books of the firm. Therefore, it is not safe to rely upon the evidence of PW22 to come to a conclusion that Exhibit P35 is a bill forged either by the appellant or by any person responsible for the execution of the work. Irrespective of that in the absence of the evidence regarding the total quantity of the bitumen required, the quantity of the bitumen purchased and the Crl.A.NO. 225 OF 2000 17 market value of the same, I find that the prosecution had not succeeded to establish that the sum of Rs.58,069.86/- was misappropriated by the appellant or that he had committed any criminal misconduct causing loss to the exchequer or Panchayath or that there was any falsification of the account books or using forged documents as genuine. Therefore, I find that the conviction under challenge is not sustainable.
In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge the appellant would stand acquitted and set at liberty. The fine amount, if any collected, shall be refunded.
P.S.GOPINATHAN, JUDGE DSV/-
Crl.A.NO. 225 OF 2000 18