Kerala High Court
Murali vs State Of Kerala on 17 August, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942
Crl.Rev.Pet.No. 416 OF 2006
CRA 125/2005 OF ADDITIONAL SESSIONS COURT, THODUPUZHA
CC 101/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
NEDUMKANDOM
REVISION PETITIONER/S:
MURALI, S/O KOCHU KUNJU,
PUTHUPPURACKAL HOUSE, KOOMPANPARA BHAGOM,
BALAGRAM KARA, KARUNAPURAM VILLAGE.
BY ADVS.
SRI.A.T.ANILKUMAR
SRI.S.DILEEP (KALLAR)
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
PP.SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 05-08-2020, THE COURT ON 17-08-2020 PASSED THE
FOLLOWING:
Crl.R.P. No.416/2006
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ORDER
Dated this the 17th day of August, 2020 The revision petitioner is the 1st accused in CC No. 101/2003 of the Judicial First Class Magistrate Court, Nedumkandom and the appellant in Crl. Appeal No. 125/2005 of the Additional Sessions Judge, Thodupuzha. The offences alleged against the revision petitioner/1st accused are under Sections 409 and 420 r/w Section 34 of the Indian Penal Code (hereinafter referred to as "IPC"). By judgment dated 31.03.2005, the learned magistrate convicted and sentenced the 1st accused for the offences punishable under Sections 409 and 420 r/w Section 34 of the IPC. For the offence under Section 409 of the IPC, the 1st accused was sentenced to undergo simple imprisonment for one year and a fine of Crl.R.P. No.416/2006 ..3..
Rs.2,000/- and in default to undergo simple imprisonment for two months more. For the offence under Section 420 of the IPC, he was sentenced to undergo simple imprisonment for one year and a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month more. The above sentences were ordered to run concurrently. Feeling aggrieved, the 1st accused is before this Court in revision.
2. Prosecution case, in brief, is herein below:
The 1st accused is the Secretary of a charitable society under the name and style, "Balagram Kurumulaku Samrakshana Samithi"
(hereinafter referred to as "Samithi") and accused Nos.3 and 4 are the bearers of the Samithi. On 15.07.1996, the 1st accused received permit for collecting fungicides from the Agricultural Officer, Pampadumpara. As per schedule, fungicides were to be collected from Crl.R.P. No.416/2006 ..4..
the Service Co-operative Bank, Balagram (hereinafter referred to as "Bank"). Accordingly, the 1st accused received 40 kg of Copper Sulphate from the salesman of the Bank. The 1st accused did not take the same to the office of the Samithi. He transported the same to Cumbum in Tamilnadu and sold the same to one Sultan Mydeen. It is alleged that all the accused in furtherance of their common intention committed the said offences. All the accused put metal pieces in the sack and kept the sack at the Samithi Office. Thus, the accused committed the offences under Sections 420 and 409 r/w Section 34 of the IPC.
3. Since accused Nos. 1 and 3 did not appear before the trial court, the case against them was split up and refiled as CC No. 101/2003. After the trial, accused No.3 was acquitted and the 1st accused was convicted and sentenced as stated in the first paragraph of this Crl.R.P. No.416/2006 ..5..
judgment. The 2nd and the 4th accused were acquitted by the learned magistrate in CC No.82 of 1997 earlier.
4. During the trial, PWs 1 to 12 were examined and marked Exts.P1 to P32 and MO1 series and MO2 series on the side of the prosecution. On crossing the evidence of the prosecution, the accused were questioned under Section 313(1)
(b) of the Code of Criminal Procedure. All the accused generally denied incriminating circumstances appearing in the evidence against them. However, no defence evidence was adduced.
5. PW1, the then Agricultural Officer of Pampadumpara stated that on 15.07.1996, he issued permit to the 1st accused for collecting 728 kg of Copper Sulphate from the Bank. The Copper Sulphate was distributed among the members of the Samithi. The 1st accused received 400 kg of Copper Sulphate from the Crl.R.P. No.416/2006 ..6..
Bank. Although the 1st accused received the Copper Sulphate, he did not distribute the same among the members of the Samithi. He misappropriated 400 kg of Copper Sulphate to the detriment of all other members. Ext.P2 is the mahazar of the Permit Register being maintained at the office.
6. PW2 was working as salesman of the Bank during the relevant period. On 16.07.1996, he gave 400 kg of Copper Sulphate to the 1st accused on the basis of a permit. He stated that the 1st accused received 400 kg of Copper Sulphate in his capacity as the Secretary of the Samithi and also acknowledged the receipt of 400 kg of Copper Sulphate.
7. PW4 stated that he was the President of the Samithi during the relevant period and the 1 st accused was the Secretary of the Samithi. PW4 further supported the version of PW1. However, he denied the fact that he gave statement Crl.R.P. No.416/2006 ..7..
before the police to the effect that the 1 st accused put metal pieces in the sack.
8. PW5 was one of the members of the Samithi during the relevant time. He also supported the version of PW2.
9. PW7 was the Secretary of the Bank during the time of occurrence. He supported the version of PWs 2 and 4. However, he added that the 1st accused misappropriated the Copper Sulphate entrusted to him.
10.PW6, who is one of the independent witnesses of this case, turned hostile to the prosecution denying the witness.
11.PWs 3 and 8 are signatories in Ext.P4 mahazar prepared by the Circle Inspector of Police, Nedumkandom. PW3 stated that in year 1996, he was working as a Tempo Track driver and he could not remember that the accused hired his Tempo Track.
12.PW9 stated that during the time of the Crl.R.P. No.416/2006 ..8..
occurrence, the 1st accused was the Secretary of the Samithi and the other accused were its office bearers. According to PW9, the 1st accused received some fungicides from the Bank for distributing the same among the members of the Samithi in 1996. Hence, he was constrained to make a complaint to PW1. However, he turned hostile to the prosecution stating that he did not witness the occurrence.
13.PW10, the Sub Inspector of Police, Nedumkandom recorded Ext.P1 FI Statement of PW1 on 03.10.1996 and registered Ext.P7 FIR. PW12 conducted investigation in this case. On 08.10.1996, he recovered Ext.P3 Permit Register and prepared Ext.P6 mahazar. On 10.10.1996, he recovered eight sacks of metals from the Office of the Samithi and prepared Ext.P8 mahazar. On 08.10.1996, PW12 arrested the 3rd accused. During the trial of the case, PW5 identified MO1 series (8 sacks of metal) Crl.R.P. No.416/2006 ..9..
and MO2 series (two sacks of Copper Sulphate) before the court. PW12 seized Ext.P10 series Fungicide Registers, Ext.P11 details of the person who received fungicides, Ext.P12 Register for the year 1995-1996 of the Bank, Ext.P13 Register, Ext.P14 letter to the 1st accused, Ext.P15 copy of the permit, Ext.P16 letter showing the details of office bearers of the Samithi for the year 1993-94, Ext.P18 letter received by the Agricultural Officer, Ext.P19 complaint filed by the Secretary of the Samithi to the Agricultural Officer, Ext.P20 letter given to the salesman of the Bank, Ext.P21 letter to prove that the Samithi is a registered society, Ext.P22 receipt, Ext.P23 letter of Pampadukara Agricultural Officer, Ext.P24 authorization letter for registration of the Samithi, Ext.P25 by-law of the Samithi, Ext.P26 Memorandum of the Samithi, Ext.P27 Original Permit, Ext.P28 Crl.R.P. No.416/2006 ..10..
letter of the Bank, Ext.P29 letter of the Agricultural Officer, Ext.P30 letter to the Bank, Ext.P31 report and Ext.P32 bail bond executed by the 2nd accused consequent to the anticipatory bail granted by the Court of Sessions, Thodupuzha.
14.Heard Sri.A.T.Anilkumar, the learned counsel for the revision petitioner, and Sri.M.S.Breez, the learned Public Prosecutor.
15.In the trial court as well as in the appellate court, it was contended that the 1st accused was not the Secretary of the Samithi on the date of occurrence as alleged by the prosecution. In paragraph 20 of the trial court judgment, the learned magistrate stated that no documentary evidence was adduced by the prosecution to prove that the 1 st accused was the Secretary at the time of occurrence. However, the learned magistrate relied on the oral testimony of PWs 1, 2, 4, 5, 7 and 9 and Crl.R.P. No.416/2006 ..11..
held that the 1st accused was the Secretary of the Samithi at the time of occurrence. The appellate court also relied on the oral testimony of PWs 1, 4 and 9 in this regard and also relied on Exts.P6, P22, P23 and P26 to hold that the 1st accused was the Secretary of the Samithi on the date of occurrence.
16.Admittedly, the Samithi is a charitable society. No evidence is adduced to prove that the Samithi is registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955. In the case on hand, the trial court and the appellate court failed to cause one of the questions for consideration as to whether Ext.P1 FIR, even if is a face value and taken to be correct in its entirety, would lead to the conclusion that the 1st accused was personally liable for the offences alleged. The Samithi is a body corporate. There are so many persons Crl.R.P. No.416/2006 ..12..
interested in the affairs of the Samithi. All other accused were impleaded in the case as office bearers of the Samithi. Vicarious liability of the 1st accused as Secretary of the Samithi would arise provided any provision existed on behalf of a particular statute fixing such vicarious liability. Even for the said purpose, the prosecution is obliged to make requisite allegations, which would attract the provisions constituting vicarious liability. In this case, the Samithi has not been made as a complainant or as an accused and the Secretary along with other office bearers has been made as accused.
17.To constitute an offence of criminal breach of trust, it is essential that the prosecution must prove, first of all, that the accused was entrusted with some property or with any dominion or power over it. Further, it must be shown that the 1st accused is a public servant Crl.R.P. No.416/2006 ..13..
or a banker or agent, who was entrusted with the property of which he was duty bound to account for. There lies the responsibility on the part of the court to find as to whether the 1st accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the 1st accused in his capacity as Secretary, he can be held liable for the offence under Section 409 of the IPC.
18.There is no allegation in the FIS that the complainant is put to wrongful loss on account of the conduct on the part of the 1st accused. In this case, the allegation is that the 1 st accused misappropriated 400 kg of Copper Sulphate entrusted to keep by PW1 on 15.07.1996 as per a valid permit. When there is no allegation of the complainant being put to wrongful loss, there cannot be any cheating. There is no direct evidence to prove Crl.R.P. No.416/2006 ..14..
that the 1st accused deceived Copper Sulphate to be distributed among the members of the Samithi in his capacity as the Secretary of the Samithi. To bring a case at the ambit of Section 420 of the IPC, not only cheating simpliciter but also dishonest inducement to the person sought to be deceived to deliver any property etc., are to be proved. For an offence under this Section, it must be proved that PW1 parted with the delivery of Copper Sulphate acting on a representation made by the 1st accused, which was false to the knowledge of the 1st accused and that the 1st accused had a dishonest intention from the outset.
19.Ext.P6 relied on by the appellate court is only a mahazar prepared by the Circle Inspector of Police, Nedumkandom. It cannot be treated as an evidence to prove that the 1 st accused was the Secretary of the Samithi on Crl.R.P. No.416/2006 ..15..
the date of occurrence. Ext.P26 relied on by the trial court is the Memorandum of Association of the Samithi. Ext.P26 would show that the 1st accused signed therein as Secretary of the Samithi. Ext.P26 is dated 25.09.1991. It has no connection or nexus with the date of occurrence in this case. Further, it is not safe to rely on Ext.P26 to enter a conviction against the accused. The Memorandum of Association is a piece of paper not duly authenticated by any competent officer. Ext.P22 is a receipt issued by the District Registrar, Idukki. In Ext.P22, the name of the 1st accused was not there. Ext.P23 is the minutes of the Samithi on 13.05.1991, in which the 1st accused was elected as the Secretary. These are all the documents relied on by the trial court to enter a finding that the 1 st accused was the Secretary of the Samithi.
20.As per the prosecution case, PW1 issued permit Crl.R.P. No.416/2006 ..16..
to the 1st accused on 15.07.1996 for collecting 728 kg of Copper Sulphate from the Bank. PW2 stated that on 16.07.1996, he gave 400 kg of Copper Sulphate on the basis of the permit. Hence, it is essential on the part of the prosecution to prove that during the relevant time, the 1st accused was the Secretary of the Samithi. It is evident from Ext.P21 that the Samithi was registered before the District Registrar, Idukki presumably for the reason that the Samithi was registered under the Charitable Societies Act. Hence, corresponding duty lies on the part of the prosecution to prove that on the date of occurrence, the 1 st accused was the Secretary of the Society. This can be proved by summoning the District Registrar, Idukki as a witness for the prosecution along with the requisite details to prove the office bearers of the Samithi. Unless and until the same is proved in Crl.R.P. No.416/2006 ..17..
evidence, the 1st accused cannot be fastened with the liability as Secretary of the Samithi on the date of committing the offences. There is nothing on record to show that the 1 st accused was the Secretary of the Samithi and as a public servant, he had committed the offences under Sections 409 and 420 r/w Section 34 of the IPC. Oral evidence adduced by the prosecution is not a substitute for proof regarding the identity of the 1st accused as Secretary of the Samithi.
21.The concurrent findings of the trial court as well as the appellate court are manifestly illegal, unfounded and unreasonable. The findings are perverse and are not based on legal evidence. Hence, the conviction and sentence imposed by the trial court as confirmed by the appellate court are liable to be set aside.
In the result, the Crl.RP is allowed. The Crl.R.P. No.416/2006 ..18..
revision petitioner/1st accused is found not guilty of the offences punishable under Sections 409 and 420 r/w Section 34 of the IPC and they are acquitted thereof. Cancelling his bail bonds, this Court directs that he be set at liberty. If any amount is deposited during the pendency of the appeal before the trial court pursuant to an interim order passed by this Court, the same shall be released to the revision petitioner in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N. ANIL KUMAR JUDGE bka/-