Kerala High Court
Antonymcardoza vs State Of Kerala on 25 January, 2011
Author: V. Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 308 of 1999()
1. ANTONYMCARDOZA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :25/01/2011
O R D E R
CR
V. RAMKUMAR, J.
.......................................
Crl. Appeal 308 of 1999
........................................
Dated: 25th January, 2011
JUDGMENT
In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the first accused in C.C. No. 16 of 1998 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for offences punishable under Sec. 13 (2) read with Sec. 13 (1) (c) of the Prevention of Corruption Act, 1988 ( "the P.C. Act" for short) and Sec. 409 read with Sec. 34 I.P.C.
THE PROSECUTION CASE
2. The case of the prosecution can be summarised as follows:-
During the period from 1-9-1995 to 18-11-1996, A1 (Antony Cardoza) was the Managing Director and A2 (P. Crl. Appeal 308 of 1999 -:2:- Prabhakaran Nair) was the Lower Division Accountant in the Keala State Handicapped Persons' Welfare Corporation ("the Corporation" for short) . A1 and A2, while employed in the Corporation as above were "public servants" within the meaning of Sec. 2 (c) of the P.C. Act. While so, on 18-5-1996 A1 and A2, in furtherance of their common intention to commit criminal misconduct and misappropriation , abused their official position and A1 misappropriated or otherwise converted a sum of ` 23,198/- entrusted to him and under his control as such public servant. A2 facilitated A1 for committing misappropriation as above. A1 and A2 thereby committed an offence punishable under Section 13 (2) read with Sec. 13 (1) (c) of the P.C. Act. In furtherance of the aforesaid common intention A1 with the aid of A2 purchased furniture items such as a Godrej almirah, Godrej table, full armchair, dining table, and six chairs altogether worth ` 23,198/- from Bright Furniture Mart , Chali, Thiruvanathapuram on 18-5-1996 without authority and dishonestly despatched the same to the residence of A1 at Thekkummoodu and A1 converted the same to his own use without accounting for the same in the stock register of the Corporation . A1 and A2 thereby committed offences punishable under Sections 403 and 409 read with Sec. 34 I.P.C. as well.
Crl. Appeal 308 of 1999 -:3:-
3. On the two accused persons pleading not guilty to the charge framed against them by the Court below on 22- 10-1998, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 12 witnesses as P.Ws 1 to 12 and got marked 22 documents as Exts. P1 to P22 and 10 material objects as MOs 1 to 10 .
4. After the close of the prosecution evidence, the two accused persons were examined under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence.
The appellant / first accused had the following to submit before the trial Court:-
The furniture in question was purchased under the bona fide belief founded on Government Orders to the effect that the Chief Executive of Public Sector Undertakings was eligible for residential accommodation. The furniture was purchased from the office as per proper indent and was taken to his residence for the use of the Managing Director Crl. Appeal 308 of 1999 -:4:- after bringing the same first to the office and entrusting the bills at the office of the Corporation. It was the Corporation which had taken the residential accommodation for his use and the rents for the same were being paid directly to the landlord from the office of the Corporation by means of cheques. The furniture was used in the above residential accommodation in utmost good faith as above.
THE CONVICTION AND SENTENCE BY THE TRIAL COURT
5. The Enquiry Commissioner and Special Judge, as per Judgment dated 23-04-1999 acquitted both the accused of the offence punishable under Sec. 403 I.P.C. but convicted them of the offences punishable under Section 13 (2) read with Sec. 13 (1) (c) of the P.C. Act and Section 409 read with Sec. 34 I.P.C. For the conviction under Sec. 13 (2) read with Sec. 13 (1) (c) of the P.C. Act A1 was sentenced to rigorous imprisonment for 2 years and to pay a fine of ` 10,000/- and on default to pay the fine to undergo rigorous imprisonment for six months. A2 was sentenced only to pay a fine of Crl. Appeal 308 of 1999 -:5:- ` 10,000/- with a similar default sentence . No separate sentence was awarded to A1 and A2 for their conviction under Sec. 409 I.P.C. It is the said judgment which is assailed in this Appeal by A1. There is no dispute that the 2nd accused died after the judgment of the trial Court.
THIS APPEAL
6. The only point which arises for consideration in this Appeal is as to whether the conviction entered and the sentence passed against the appellant (A1) are sustainable or not ?
The Point:-
7. I heard Advocate Sri. Bindu Sasthamangalam , the learned counsel appearing for the appellant and Advocate Sri. M.R. Venugopal, the learned Public Prosecutor who defended the State.
PUBLIC PROSECUTOR'S ARGUMENT
8. The learned Public Prosecutor made the following Crl. Appeal 308 of 1999 -:6:- submissions before me in support of his argument to dismiss the appeal and confirm the conviction and sentence :-
Before purchasing the furniture (MOs 1 to 10) A1 was bound to invite quotations or invoices and thereafter he had to issue indent for the purchase. There was no quotation obtained nor any purchase order issued. Whenever purchase is made, entries should be made in Ext.P8 stock register . Neither P.W4, the Confidential Assistant who was maintaining the stock register nor P.W. 7 who was the immediate officer below the first accused and who was maintaining the indent file was informed about the purchase nor any entries made in the stock register or indent file. Ext.P2 invoice and Ext.P5 cash bill were never shown to P.W.4 or P.W.7 . The evidence of P.W.2 the casual labourer who was assembling tricycles in the Corporation will show that the furniture (MOs 1 to 10) was brought in front of the Corporation Office from the Bright Furniture Mart only for the purpose of taking P.Ws 2 and 5 and the accused persons to the residence of A1. A1 and A2 went in the car driven by P.W. 5 who was the driver of "Sowbhagya" Store run by the Corporation and P.W. 2 also accompanied them. Eventhough A1 retired from the Corporation on 18-11- 1996, he did not give any intimation to the office requesting Crl. Appeal 308 of 1999 -:7:- that the furniture may be taken back. Instead, he had fraudulently retained the furniture in the very same house which he was occupying even after his retirement . A1 has not given any proper explanation for the purchase and diversion of the furniture to his house even during his examination under Sec. 313 Cr.P.C. His specific defence was that as per Exts. D1 and D2 Government Orders A1 was entitled to residential accommodation. Assuming that he was entitled to residential accommodation, there is nothing to show that he was entitled to furnished accommodation. The intention of the accused was to grab at the property for his own personal use even after relieving from the post . He was thus dishonestly and fraudulently converting for his own use MOs 1 to 10 under his control as a public servant thereby attracting Sec. 13 (1) (c) of the P.C. Act and punishable under Sec. 13 (2). Since A1 had dominion over the furniture even after his tenure as the Chief Executive of the Corporation, Sec. 409 I.P.C. is clearly attracted. The dishonest intention is clear from the fact that Ext.P3 cheque for ` 23,198/- drawn on the Statue Branch of the State Bank of India is dated 24-5-1995 whereas the counterfoil of the cheque bears the date 18-5-1996 which is the date on which MOs 1 to 10 were actually brought from Bright Furniture Mart. The conviction entered against the appellant Crl. Appeal 308 of 1999 -:8:- does not call for any interference. The sentence imposed on the appellant is also commensurate with the gravity of the offence and may not be interfered with.
9. I am afraid that I find myself unable to agree with the above submissions made on behalf of the prosecution.
THE PROSECUTION EVIDENCE
10. P.W.1 (P.K. Ravikumar), is the de facto complainant. In the year 1996 he was the Secretary of the employees' association of the Corporation. He had sent a complaint to the Industries Minister to the effect that furniture purchased with the funds of the Corporation were taken to the house of A1 at Thekkummoodu without bringing the same to the Corporation Office and without entering the same in the stock register . Those furniture items are not in the office of the Corporation even now. They consisted of a table, an arm chair, a dining table and six chairs . It was A2 who wrote the cash book as well as the cheque. A1 was the drawing and disbursing officer . The furniture was purchased from Bright Furniture Mart at Chalai for a sum of ` 23,198/- . It was the Confidential Assistant who used to enter the purchases on behalf of the Corporation in the Stock Register and distribute the same . Ext.P1 (a) is the relevant entry in Ext.P1 cheque issue register showing that Cheque No. 77013 for ` 23,198/- was issued to Bright Furniture Mart. The relevant entry has been made by A2 and signed by A1. Ext.P2 is the invoice issued by Bright Furniture Mart, Aryasala, Thiruvananthapuram. A2 has endorsed on Crl. Appeal 308 of 1999 -:9:- that invoice "may be sanctioned". A1 has signed below that. Ext.P3 is the cheque prepared by A2 and signed by A1. The date of the cheque is 18-5-1996. But Ext.P4 (a) counterfoil of Ext.P3 cheque in Ext.P4 cheque book bears the date 24-5-1996. P.W.1 joined the Corporation only in the year 1997 November. He did not verify whether the purchase of furniture was after complying with the procedure. The usual procedure is to purchase materials after taking an invoice and then effecting payment by means of cheque. Invoices are taken and cheques are issued in the name of the Managing Director who is the Chief Executive.
P.W.1 doesn't know whether a residential
accommodation was provided to A1 from the
Corporation. He has not seen the stock register of the Corporation. If any goods are purchased by the Corporation, it is the person who maintains the stock register who has to take those goods into the stock . The Corporation has a Chairman . He has an office room. But he doesn't have residential accommodation. The complaint which P.W.1 had given to the Minister was while he was employed in the Departmental Store. He was personally handing over the complaint to the Minister. When goods are purchased, they will be entered in the stock register on the basis of invoice and cash bill . The Chairman and M.D. of the Corporation was given telephone facility from the Corporation. The facilities given to the Chairman and M.D. would be taken back after they demit office. He has not seen G.O. (MS) 70/87/Plg dated 19-10-1987. He has not been to the residence of A1. He does not know whether It was as part of his official duty that A2 prepared the cheque. The Act of drawing the cheque and placing it for the signature of the superior officer is part of the Crl. Appeal 308 of 1999 -:10:- official duty. It was revealed in the enquiry that A2 was performing his official duty.
11. P.W.2 (Vasudevan Nair ) was a casual labourer employed by the Corporation for assembling tricycles. A1 was the M.D. and A2 was the Accountant. On the request of A2 he had obtained a quotation from Bright Furniture Mart at Chalai . That day evening at 3.30 p.m. A2 had given him an envelop and had asked him to deliver it at the said furniture mart. After handing over the envelop at the Mart he came to know that it was a cheque for ` 23,198/-. As the shop keeper told him that they will despatch the furniture, he returned to the Corporation Office. At about 6.30 p.m. the furniture was brought in front of the office of the Corporation in a goods autorickshaw. They were, a steel cupboard , a table , full arm chair , a dining table and six chairs . When the furniture was brought, A1, A2, driver Suresh (P.W.5), and L.D. Clerk Vijayan (P.W.8) were standing outside the door. On the request of A1 , A2 asked them to take the furniture to Thampuranmukku. P.W.2.,A1,A2 and P.W.8 went ahead of the autorickshaw in the office car. P.W.5 was driving the car. The furniture was unloaded at the entrance of A1's house. A1 was residing on the first floor of a house . Those who brought the furniture took the furniture inside the house of A1. A2 paid the rental of the autorickshaw. Ext.P5 is the cash bill given to him from the furniture mart when he gave the cheque. Ext. P2 is the invoice which he took from the furniture mart. Ext.P6 is another invoice . Ext.P2 and P6 invoices were taken from two different establishments. The other establishment is Standard Industries. He had handed over both the invoices in the office of the Corporation. It was on the instruction of A1 that the Crl. Appeal 308 of 1999 -:11:- furniture was dispatched to the office of the Corporation . He had entrusted Ext.P5 cash bill with A2. He had learnt that the furniture was purchased in accordance with the office procedure.
12. P.W.3 (Hariharan) is the Cashier of Bright Furniture Mart. He had given Exts. P2 and P6 invoices as well as quotation to the Corporation. The furniture mentioned in Ext.P2 invoice was supplied to the Corporation against payment made by cheque for a sum of ` 23,198/-. Ext.P5 is the cash bill prepared by him on 18-5-1996 on which date itself the furniture was despatched . It was P.W.2 who had come and taken the invoice.
13. P.W.4 (Radhamma) was the Confidential Assistant of A1 in the Office of the Corporation. A2 was the L.D. Accountant there. P.W.4 was maintaining Ext.P8 stock register for purchase of furniture and stationary items in the Corporation. The furniture mentioned in Ext.P2 invoice was not brought to the office on 18-5-1996 and she was not aware of the purchase of the furniture. Ordinarily, if a bill is received through tapal it will be shown to the M.D and his initials will be taken and she will be asked to take the goods on stock. Ext.P2 invoice was not given to her. During the tenure of A1 she was not shown the furniture bill nor had she taken stock of the furniture. The furniture mentioned in Ext.P2 have not been entered in the stock register. She knew about the purchase under Ext.P2 only after the case was registered. There is an office order laying down her duties which were the normal duties of the Confidential Assistant and despatch. There is no specific mention in the office order regarding her duty to maintain the stock register. She saw Ext.P2 only during investigation of Crl. Appeal 308 of 1999 -:12:- the case. It was A2 who was keeping the invoice. When the invoice is received in the office it will be entered in the tapal and will be initialed by the M.D. The stock register was being kept from the year 1993 onwards as directed by the M.D. The furniture now in the Corporation have been entered in Ext.P8 stock register. All the goods of the Corporation are not entered in Ext.P8. Similarly, goods manufactured by the Corporation are not entered in Ext.P8. During the tenure of A1 as M.D. when furniture items were purchased, they were mostly not entered in the stock register. M.D. is the Chief Executive of the Corporation. She does not know whether the M.D. was provided residential accommodation. She does not know what all facilities were given to A1. She has not been to the house of A1. Out of the furniture mentioned in Ext.P5 cash bill, she has seen the table, chair and cupboard at the place where the M.D. was sitting . She has been working in the Corporation ever since the year 1980. If any properties are purchased for the Corporation, it is for the M.D. to decide as to how and where such properties are to be kept. As per the office order dated 31-08-1995 it was for A2 to maintain the account, cash book and ledger. If any properties were purchased it was for A2 to prepare the cheque as part of his official duty.
14. P.W.5 (Suresh Kumar) was the driver of "Sowbhagya" Department Store, run by the Corporation. He became driver on 1-7-1996. Prior to that he was a peon in the Corporation Office. A1 was the M.D. of the Corporation and he was provided with an office car bearing Reg. No. KL-01-G 5354. A1 was residing in a rented house at Thekkinmoodu. It was the first floor of a two-storied building. On 18-5-1996 , the Store Crl. Appeal 308 of 1999 -:13:- Manager asked him to go to the Corporation Office at Bakery Junction as requested by A1. He accordingly went there . A1's driver had already gone home. He was requested to take A1 to his house. Accordingly he started from the Corporation Office at 6 p.m. He was told that furniture was being brought in a goods autorickshaw. A1 , A2 and P.W.2 were also in the Car. The furniture was taken inside the house of A1. He saw the furniture for the first time in the Corporation Office. He does not know the source of furniture or how it came to the Corporation Office.
15. P.W.6 (Rajagopal) was the Manager of the Statue Branch of the State Bank of India. There is an account in his branch in the name of the M.D. of the Corporation. Ext.P3 cheque in favour of Bright Furniture Mart, issued by the corporation was drawn on his Bank. The sum of ` 23,198/-. mentioned in the cheque was paid through the Tamil Nadu Mercantile Bank. The cheque was cleared since it had come to the Bank properly and legally.
16. P.W.7 (Vijayakumari) was the Junior Superintendent of the Corporation since 21-3-1992 onwards. As per the office order dated 31-08-1995, the duty of A2 was maintenance of accounts, cash book and ledger. Ext.P9 is the indent file of the Corporation. After the tenure of A1, one A. Francis took charge as M.D. on 19-11-1996. When the Corporation purchased furniture such as steel table with drawer, steel cupboard, steel arm chair, proper invoice was taken and the same is recorded at page 70 of Ext.P9 in which the then M.D. had sanctioned the request and had ordered purchase of the same from SIDCO . The said purchase is entered in Ext.P8 stock register. No request was made from the office for purchase of the Crl. Appeal 308 of 1999 -:14:- furniture mentioned in Ext.P5 cash bill nor was any purchase order issued for the same . It was A2 who made the request and A1 had signed the same and sanctioned ` 23,198/-. The furniture mentioned in Ext.P2 invoice was not purchased for the office . He does not know whether the said furniture was brought to the office . One K.K. Asokan was working in the accounts of the Corporation. As per order No. 4/95 dated 31-07-1995 the duty of the said Asokan was to supervise the maintenance of cash book and other registers. A2 was working as L.D Accountant under the said Asokan. It was under the guidance and supervision of the said Asokan that A2 was discharging his duties as L.D Accountant. If the M.D purchases goods there will be invoice and cash bill in the office. Ext.P2 invoice and P5 cash bill were obtained among the records transferred by A2 after he was placed under suspension. The furniture covered by Exts.P2 and P5 were not entered in the stock register which was maintained by PW4. During the tenure of A1 as M.D., many of the furnitures purchased were not entered in the stock register. Stationery items have been entered in the Stock Register. On 12.09.1995, PW7 had ordered for an executive table, executive chair and steel almirah on the directions of A1. Since the M.D was not available she signed the order on behalf of the M.D. It is for the M.D to decide who should use the goods including furniture purchased for the Corporation. She does not know whether A1 was provided with any residential accommodation. A1 was provided with a telephone, the rent of which was paid from the funds of the Corporation. When the M.D is relieved from the post, his telephone will be disconnected and the successor M.D will take back the telephone connection. When the Crl. Appeal 308 of 1999 -:15:- new M.D asks the office staff to take the necessary steps, they will issue the letter and take steps for retrieval of the assets from the former M.D. Eventhough as per office order PW7 was supposed to supervise the work of the ministerial staff, she did not get any opportunity to do so. The Industrial Extension Officer was immediately below A1 and the post of J.S was immediately below that of the Industrial Extension Officer. During the period in question, the post of PW7 was immediately below that of the M.D. She has not supervised as to whether A2 was discharging his functions in accordance with the officer procedure. Maintaining the cheque book, preparing cheque and getting the same signed after putting the date etc. were the duties of L.D.Accountant and A2 was doing those duties.
17. PW8 (Vijayan Nair) was the Store Assistant in the Corporation since the year 1984. He was the member of the Purchase Committee of the Corporation. While green gram and rice were purchased pursuant to the decision of the Purchase Committee, furniture was not so purchased. It was not necessary to consult the Purchase Committee for purchase of furniture and it was the M.D who would purchase the furniture for the Corporation.
18. PW9 (Padma Kumari) was the Under Secretary of the Vigilance Department from April 1996 onwards. It was she who had processed the Investigation report and connected records sent by the Director of Vigilance to the Government and submitted the same to the Principal Secretary through the Additional Secretary, Vigilance. Shri.K. Mohananchandran was the then Principal Secretary. Ext.P10 is the order issued by the Principal Secretary according sanction to prosecute A1. As per the G.O. Crl. Appeal 308 of 1999 -:16:- shown to PW9, the Chief Executives of Public Sector Undertakings are entitled to residential accommodation. She does not know what all things will be included in the residential accommodation. Shri. Mohanachandran, the Principal Secretary is still in service in the department. She does not remember the details of the merits of the case.
19. PW10 ( T.P.Mukundan) is the present M.D. of the Corporation. After perusing the Investigation files and connected records despatched to him by the Director of Vigilance, he accorded Ext.P11 sanction to prosecute A2 who was removable from the post by the M.D. As per the office order No.49/1995 dated 31.08.1995, the duties of A2 who was L.D. Accountant were maintenance of accounts, cash book and ledger duty. There was a junior Superintendent above A2 to supervise his work. In the note file the recommendation for the issue of cheque will be written by the clerk as "may be issued". The file will then be submitted to the M.D. It is incorrect to suggest that A2 had performed his official duty only.
20. PW11(Ponnappan) is a U.D.Accountant in the Social Welfare Department, Thiruvananthapuram. On the request of the Dy.S.P., Vigilance, he figured as a witness to the search conducted in a house called "Suraj" at Thekkummoodu. M.Os. 1 to 10 were the items of furniture seized by the Vigilance Police under Ext.P13 Search List to which PW11 figured as a witness. P.W.11 thereafter took the said furniture items on interim custody under Ext.P12 Kaichit. Since he had full faith in A1, he had left the furniture items in that house itself.
21. PW12 (Chitrasenan) was the Dy.S.P., Vigilance. who registered Ext.P14 FIR on the basis of a vigilance enquiry conducted by him. On 13.11.1997, at Crl. Appeal 308 of 1999 -:17:- 12.30 pm he conducted search of the house of A1 and seized MOs 1 to 10 furniture under Ext.P13 search list to which PW11 figured as an attestor. MOs. 1 to 10 furniture were then entrusted with PW11 under Ext.P12 Kaichit. During the course of investigation, he seized various documents under Ext.P15, P16, P18, P20,P21 and P22. Subsequently after getting Exts.P10 and P11 orders of sanction to prosecute A1 and A2 he laid the charge against A1 and A2 before the trial court. He has not produced the enquiry report before court. A2 was arrayed as an accused for his conduct of facilitating A1. A2 prepared the cheque which was signed by A1. It was no part of the duty of A2 to prepare the cheque. He did not find out as to who prepared the cheques prior to Ext.P3 cheque. It was A2 who was maintaining the counterfoil. He does not know as to who maintained the counterfoil with regard to the cheques drawn prior to Ext.P3 cheque. It was A2 who was keeping the earlier and the subsequent cheque books, account pass books etc. It may be true that A2 had prepared the cheque on the instructions of his superior. Preliminary enquiry was conducted on the complaint of Ravikumar(PW1). He cannot say without perusing that complaint as to whether there was any reference about A2 in the said complaint. It is not true to say that A2 was merely carrying out his official duties. M.D is the Chief Executive of the Corporation. M.D has similar residential accommodation as that of Government officers. His quarters were not furnished quarters. M.D was not entitled to furnish his quarters. He had seen a Government order as per which M.D was not entitled to furnished quarters. He does not remember whether he had seen G.O.(Ms)70/87 Plg dated 19.10.1987. His investigation did not reveal as to whether the M.D was Crl. Appeal 308 of 1999 -:18:- entitled to furnished quarters. It was the M.D. who was to purchase articles for the Corporation and the articles so purchased would be entered in the stock register. He only examined as to whether M.Os 1 to 10 were entered in the stock register. A1 was not present when P.W.12 prepared Ext.P13 search list. A1 came there only after the search. This fact is not recorded in Ext.P13. The daughter of A1 was present at the time of search. Since the daughter of A1 told him that the articles in the almirah belonged to A1, he returned them. PW11 was available in the house where the search was conducted.
JUDICIAL EVALUATION
22. The first charge which the appellant was called upon to answer was that he, as a public servant, misappropriated a sum of `23,198/- under his control and belonging to the Corporation and he thereby committed the offence of criminal misconduct under Section 13(1)(c) of the P.C.Act and punishable under Section 13(2) of the said Act. The evidence discussed above will clearly show that after obtaining Ext.P2 invoice and quotation from Bright Furniture Mart, Thiruvananthapuram Ext.P3 cheque was issued by the appellant to the said Mart against Ext.P5 cash bill for Crl. Appeal 308 of 1999 -:19:- `23,198/-. Bright Furniture Mart is the payee under Ext.P3 cheque and Ext.P5 cash bill was also issued by the said Mart. If so, it cannot be said that the appellant had misappropriated the sum of `23,198/- belonging to the Corporation as alleged.
23. Apart from the fact that, for obvious reasons, no office order or other written procedures for purchase of furniture by the Corporation was produced by the prosecution, PW4 the Confidential Assistant, who claimed to be the custodian of the stock register frankly confessed that the office order does not mention the stock register as one of the registers to be maintained by her. If so, the testimony of PWs.4 and 7 that the duty of maintaining the stock register was on the shoulders of P.W.4, can be accepted only with a pinch of salt. If according to the established office procedure of the Corporation PW4 is not shown to be the staff entitled to maintain the stock register, the testimony of PWs.4 and 7 that Crl. Appeal 308 of 1999 -:20:- no invoice or quotation was taken before purchasing the furniture and the furniture so purchased was not shown to PW4 nor did she enter the same in the stock register, cannot be believed to hold that A1 was effecting a purchase in violation of the established procedure. When the testimony of P.Ws 7 and 10 will clearly show that the duty of maintaining the cash book, ledger, accounts and preparing cheques etc. was on A2, P.W.12, the investigating officer turned out to be more loyal than the king himself to say that A2 had no such duties. When the procedure mentioned by PWs.4 and 7 for purchase of furniture, is not supported by any authentic record and no fixed procedure for purchase of furniture has been proved, no dishonest motive or fraudulent intent can be attributed to the appellant. It is admitted that Ext.P2 invoice and Ext.P5 cash bill were seized by PW12 from the office of the Corporation itself as per Ext.P15 inventory. If so, the testimony of PW4 that she did not receive either the invoice or Crl. Appeal 308 of 1999 -:21:- the cash bill can only be characterized as an attempt to absolve herself from liability. PW4 or PW7 have no case that A1 had specifically directed PW4 or any other member of th staff not to enter purchase of furniture in the stock register. Hence if no entries were made in the stock register, PWs.4 and 7 alone are to be blamed for that. The evidence of PW7 will further show that he himself had placed orders for furniture on behalf of the M.D. without entering the same in the stock register. It is relevant in this connection to note the admission by P.W.7 that one K.K. Asokan working in the accounts used to supervise the accounts and ledgers. If so, he too was liable for the acts and omissions attributed to A2. But strangely enough, the said Asokan was not made an accused. That apart, he was kept out of the witness box. Similarly, P.W.8 who was examined by the prosecution to show that the furniture was purchased by A1 without the sanction of the Purchase Committee did not support the prosecution. He Crl. Appeal 308 of 1999 -:22:- was not even declared hostile to the prosecution. According to P.W.8, clearance from the Purchase Committee was necessary only for purchase of green gram and rice and not furniture.
24. The evidence adduced in this case clearly shows that A1 had called for quotations and had issued a cheque to M/s.Bright Furniture Mart, (which was the payee under Ext.P3 cheque) on the strength of Ext.P2 invoice. Ext.P5 cash bill also was issued by Bright Furniture Mart in favour of the Corporation. Both Exts. P2 and P5 were seized from the office of the Corporation and that the M.D. alone was entitled to decide as to how and where the furniture so purchased was to be utilised. It is also in evidence that the M.D alone was competent to purchase furniture for the Corporation. It is in evidence that the furniture was taken first to the office of the Corporation at Bakery junction. The evidence adverted to above shows that A1 as the Managing Director of the Crl. Appeal 308 of 1999 -:23:- Corporation which is a Public Sector Undertaking was entitled to residential accommodation. There is no dispute that during the period from 1.09.1995 to 18.11.1996 A1 was the M.D. of the Corporation. The furniture purchased on 18.05.1996 by A1 on behalf of the Corporation without any attempt to conceal the purchase was taken first to the office of the Corporation and from there to the residential accommodation of A1. A close reading of the testimony of PW1 will show that he was lodging a complaint before the Minister on the basis of mere suspicion and without knowing any of the factual details regarding the purchase procedure or the entitlement of A1 for residential accommodation as the Chief Executive of the Corporation. As for the difference in the dates in Ext.P3 cheque and its counterfoil, nothing turns on it. It is nobody's case that Ext.P3 cheque was not issued by A1 on behalf of the Corporation or that it was not encashed by Bright Furniture Mart.
Crl. Appeal 308 of 1999 -:24:-
25. A1 had produced Exts.D1 and D2 Government orders namely G.O.(Ms)No.70/87/Plg dated 19.10.1987 and G.O.(Ms)No.22/98/Plg dated 09.07.1998 issued by the Government revising the scales of pay of the Chief Executives of the State Public Sector Undertakings. Those orders would show that A1 as the Chief Executive of the Corporation which is a Public Sector Undertaking, was entitled to residential accommodation. Even P.W.12, the investigating Officer, had to confess that M.D. is the Chief Executive of the Corporation and that he has similar residential accommodation as that of officers of the Government. To the same effect is the admission of P.W.9 as well. In fact, in order to substantiate the defence of A1 that he could utilise the furniture of the Corporation for use in his residential accommodation, A1 (the appellant) had cited the Chief Secretary as a defence witness. But the trial Judge did not issue summons to the said witness thereby depriving the appellant of an opportunity to Crl. Appeal 308 of 1999 -:25:- substantiate his defence.
26. It is true that the prosecution has a case that the furniture in question (MOs. 1to 10) were seized from the house of A1 after his tenure as M.D. as evidenced by Ext.P13 search list dated 13-11-1997. But it cannot be forgotten that P.W.4 has admitted that out of the furniture mentioned in Ext.P5 cash bill, she had seen the table, chair and cupboard at the place where the M.D. was sitting in his office. Of course, P.W.4 could be said to be labouring under a mistake when she stated so. But the evidence of P.W.1, the de facto complainant himself is that the facilities given to the Chairman and M.D. will be taken back by the Corporation after these dignitaries demit their office. Going by the evidence of P.W.7, after the M.D. is relieved from the post it is the successor M.D. who will issue letters and take steps for retrieval of the properties of the Corporation from the former M.D. If so, from the mere fact that A1 was found to possess Crl. Appeal 308 of 1999 -:26:- the furniture belonging to the Corporation, it cannot be straightaway concluded that A1 had misappropriated MOs 1 to 10 furniture. This is particularly so when the prosecution has no case that the Corporation had demanded A1 to return the furniture and A1 was dishonestly retaining the furniture even after that.
27. The sanction to prosecute the appellant (A1) also cannot be said to have been duly proved in this case. While sanction under Sec. 19 of the P.C. Act to prosecute a person who has ceased to be a public servant is not necessary, sanction under Sec. 197 Cr.P.C. to prosecute a person for any of the offences under the Indian Penal Code is necessary even if such person has ceased to be a public servant. Admittedly, Ext.P10 order of sanction to prosecute the appellant was issued by Sri. Mohanachandran, the Principal Secretary, Vigilance. The said Principal Secretary was not examined in this case. Instead, P.W.9, the Under Secretary Crl. Appeal 308 of 1999 -:27:- who processed the files which were received from the Director of Vigilance and who put up the files to the Principal Secretary through the Addl. Secretary, Vigilance alone was examined in this case to prove Ext.P10 sanction order issued by the Principal Secretary. P.W. 9 admitted that Sri. Mohanachandran is still in service in the Department. Independent application of mind to the facts of the case as also to the materials and evidence collected during investigation by the authority competent to grant sanction is necessary. (Vide Mansukhlal Vithaldas Chauhan v. State of Gujrat - AIR 1997 SC 3400 = (1997) 7 SCC 622). The independent application of mind and the consequent satisfaction arrived at before according prosecution sanction are matters which could be proved only by the sanctioning authority and nobody else. If it was a lapse on the part of an autopsy surgeon in proving the post mortem certificate or that of a doctor in proving the wound certificate of a patient Crl. Appeal 308 of 1999 -:28:- whom he had treated, courts come down heavily on them . But why show undeserving latitude towards the lapse on the part of an administrative executive ? Even if the argument that the expression "Secretary" as defined under Rule (2) (c) of the Rules of Business of the Government of Kerala includes lower officers such as Special Secretary, Additional Secretary, Joint Secretary or a Deputy Secretary, is accepted, still the Under Secretary will not fall under the said definition. Moreover, if a low level officer can be treated as the Secretary for the purpose of proving prosecution sanction, then why not invest such low level officer to issue orders granting prosecution sanction ? Is it the aversion, antipathy or abhorrence of the official intelligentsia to go to the Court, mount the witness-box and face relevant but inconvenient questions, or is it the "sensible" forestalling of a feared ignominy of the administrative executive by the investigating and prosecuting agencies ? The fact remains Crl. Appeal 308 of 1999 -:29:- that the sanction to prosecute the appellant has not been legally proved.
THE CONCLUSION
28. After an anxious re-appraisal of the oral and documentary evidence in this case, I have no hesitation to conclude that the prosecution has failed to establish that the appellant (A1) purchased the furniture (MOs 1 to 10) by violating the established procedure or dishonestly or fraudulently misappropriated or converted for his own use either a sum of ` 23,198/- or MOs 1 to 10 worth Rs.23.198. If so, the conviction entered and the sentence passed by the Special Court, overlooking the above vital aspects of the evidence cannot be sustained. The appellant (A1) is accordingly found not guilty of the offences punishable under Section 13 (2) read with Sec. 13 (1) (c) of the P.C. Act and Sec. 409 read with Sec. 34 I.P.C. and is acquitted of the said offences. He is set at liberty forthwith. This appeal is Crl. Appeal 308 of 1999 -:30:- allowed as above.
NEED TO STREAMLINE AND LEGALISE THE PROCEDURE IN THE VIGILANCE DEPARTMENT
29. Before parting with this case, I have to deal with certain procedural aberrations which I have come across in this Case. P.W.1 (Ravikumar) is the person who allegedly pulled the trigger by setting the criminal law in motion against the accused. The whole proceedings for investigation started off with the written complaint which P.W.1 claims to have sent to the Minister for Industries. According to P.W. 12, the investigating officer, consequent on the complaint by P.W.1, a Vigilance enquiry was conducted by him at the Vigilance Headquarters. So, it has to be presumed that the complaint of P.W.1 was forwarded by the Minister to the Director of Vigilance and Anti Corruption Bureau ("DVACB" for short), Thiruvananthapuram. The case was registered on 29- 10-1997 by P.W.12 as Crime No. 8 of 1997 of the Vigilance Crl. Appeal 308 of 1999 -:31:- and Anti Corruption Bureau Police Station, Thiruvananthapuram. Neither the written complaint by P.W.1 nor the enquiry report of P.W.12 was produced before court. P.W.12 confessed that without perusing the aforesaid complaint he cannot say whether there was any allegation against A2 in the said complaint.
30. This is not a case where the complaint received by the Minister and forwarded to the DVACB was either an anonymous or pseudonymous complaint. P.W.1 had never chosen to remain anonymous or pseudonymous. He had not requested anybody not to disclose his name or identity for fear of incurring the wrath of anybody. On the contrary, he boldly chose to give evidence in support of his complaint. His name figured as the first witness in the list of witnesses furnished along with the charge sheet. But, curiously enough, P.W.1 was not described as the first informant. Instead, P.W.12 himself was described as the complainant/informant Crl. Appeal 308 of 1999 -:32:- against column 14 of Ext.P14 F.I.R. The case was registered by P.W. 12 on the strength of his own suo-motu report in which there is not even a whisper about the complaint by P.W.1. This is the usual pattern in which crime cases are registered both in the C.B.I. as well as the State Vigilance Department. The only exception is that in trap cases alone the F.I.R. is registered before the pre-trap proceedings and the accused public servant who allegedly demanded the relatively small gratification is exposed to the humiliating and harrowing experience of arrest, confirmatory tests etc. In sharp contrast, a public servant who allegedly amassed wealth shockingly disproportionate to his sources of income is not subjected to any such tormenting experience.
31. While a preliminary enquiry before the formal registration of a crime case is desirable in corruption charges against public servants and such preliminary enquiry has the sanction from the highest Court of the land in the light of the Crl. Appeal 308 of 1999 -:33:- observations in P. Sirajuddin v. State of Madras - (1970) 1 SCC 595, the Police cannot disregard or flout the provisions of the Cr.P.C. while proceeding further after such preliminary enquiry. The salutary object behind conducting a preliminary enquiry is to find out whether the charge of corruption or criminal misconduct made in a complaint against a public servant is genuine and honestly made. A public servant, by virtue of the office he holds may have to displease or disappoint many persons who may approach him for favours or other undeserving benefits. There is, therefore, the likelihood of disgruntled persons coming out with false allegations of corruption, nepotism, parochialism and other misconduct against the public servant. If ultimately the allegations turn out to be false and ill-motivated, the harm that may be done to the public servant and the department concerned may be incalculable. That explains the need for a preliminary enquiry. But by suppressing the earliest Crl. Appeal 308 of 1999 -:34:- statement or information about the commission of the offence (which is cognizable) if the Deputy Superintendent of Police (Dy.S.P. for short) were to suo motu register the crime case on the strength of subsequent statements given to him by other persons during the preliminary enquiry, his suo motu report itself would be hit by Sec. 162 Cr.P.C. It is well settled that formal registration of an F.I.R is not necessary for the commencement of investigation and for the interdict under Sec. 162 Cr.P.C. to operate. (Vide Chandrababu v. Sub Inspector of Police - 1988 (2) KLT 529). In Adam Khani and others v. State - 1959 KLT 801 this Court had deprecated as illegal the conduct of the Sub Inspector of Police in treating his own suo motu statement as the first information statement. This court observed as follows:-
On behalf of the appellants it was strenuously contended that the investigation of the case from the very commencement was vitiated by illegalities. It was pointed out that Ext.P5, the statement given by PW9 and recorded by himself after the accused were arrested and the articles seized, was not really the first information Crl. Appeal 308 of 1999 -:35:- regarding the alleged offence and that PW.9 should have recorded the statement of the person who told him that the accused were actually engaged in counterfeiting coins at the house of the first accused. The argument was that by not recording that statement or examining the informant the accused had been deprived of the opportunity of cross-examining him and establishing their innocence. There is substance in this contention. The information received by PW9 was that an offence was committed. He should have made a record of the statement given by the informant.
32. There is yet another reason for not recognizing the suo motu report of the police officer as the First Information Report and the Police Officer as the first informant. If, after conclusion of the investigation, the police were to file a "refer report" before the Court to the effect that no offence is made out against the accused and if the Court were to accept the "refer report" the Court is obliged to give notice to the informant and provide him an opportunity of being heard before accepting the refer report. (Vide Bhagwant Singh v, Commisioner of Police - (1985) 2 SCC 537 = AIR 1985 SC 1285, Union Public Service commission v, Papaiah and Others Crl. Appeal 308 of 1999 -:36:-
- AIR 1997 SC 3876; Mohanraj v. Rajeev - 1998 (2) KLT 1057; Gangadher Janardan Mhatre v. State of Maharashtra and Others - AIR 2004 SC 4753 and Sanjay Bausal and Another v. Jawaharlal Vats and Others - (2007) 13 SCC 71).
In this case, the person described as the complainant/informant in Ext.P14 F.I.R. is none other than the Dy.S.P. (P.W.12) who submitted the suo motu report and later investigated this case. If, in compliance of the aforesaid judicial verdicts, the Court were to issue notice to the said Police Officer, it will be the height of absurdity and will result in miscarriage of justice. The real purpose of conducting the preliminary enquiry is not comprehended by the State Vigilance department. Instead, such enquiry is resorted to for committing blatant violation of the provisions of the Cr.P.C and the binding verdicts of the Apex Court. Vigilance Enquiry is not for concealing the real first informant or for suppressing his complaint. The so called "source Crl. Appeal 308 of 1999 -:37:- information" is nothing but a subterfuge to unjustifiably get over the embargo under Sec. 162 Cr.P.C.
33. Many of the illegal procedures followed by the Vigilance Department are attributable to the executive instructions issued by the Government without adequate legal consultation. G.O.(P)No.65/92/Vig dated 12.05.1992 and the Vigilance Manual incorporating the above G.O and other patently wrong orders are glaring examples of such executive interventions. When the offices of 14 District Units, offices of the 4 Range Superintendents of Police, offices of the 3 Superintendents of Special Cell, office of the Special Investigation Unit, Thiruvananthapuram and even the office of the DVACB have been notified by the Government as "Police Stations" under Section 2 (s) Cr.P.C, empowering the officer in charge of each such unit to function as a Station House Officer (S.H.O for short) the freedom of such S.H.O cannot be curtailed by directing that he shall register a crime case or Crl. Appeal 308 of 1999 -:38:- arrest an accused officer or file a final report (charge sheet) only with the sanction of the Director who in turn may have to yield to the pressure from the political executives and other power centres. This Court had occasion to comment upon the undesirable influence exerted by the "Police Superiors" in the C.B.I on the team of investigating officers in the "Sampath murder case" (vide Murukesan v. State of Kerala - 2011(1) KHC 97=2011(1) KLT 194. The main criticism made by the Apex Court in Sirajuddin's case was that the preliminary enquiry conducted by the Police in that case was too elaborate, one-sided and biased. Even after 4 decades of Sirajuddin the position does not appear to have changed. PW12 who conducted the preliminary enquiry as well as investigation in this case stuck to his own prejudicied view despite the documentary and other evidences to the contra. It is high time that the State Vigilance Department as well as the CBI made an in-depth study into the above aspects and came Crl. Appeal 308 of 1999 -:39:- out with a fool-proof and legally sustainable "investigation structure" which does not run counter to the provisions in the Cr.P.C. or in any manner interfere with the functional autonomy of the officer who is actually conducting the investigation. The above investigating agencies exist for serving the aggrieved and thereby serving the community at large, rather than serving their own masters who need not necessarily be free from other extraneous pressures and considerations. No civilised society can afford to stake the credibility and impartiality of premier investigating agencies which are the ultimate bodies which the Government, Constitutional Courts, and above all, the unsuspecting public can look to for a faultless and impartial investigation .
Dated this the 25th day of January, 2011.
V. RAMKUMAR, JUDGE.
ani/sj Crl. Appeal 308 of 1999 -:40:- V. RAMKUMAR, J.
....................................... Crl. Appeal 308 of 1999 ........................................ Dated: 25th January, 2011 JUDGMENT