Kerala High Court
Smt. S.Anitha vs State Of Kerala on 5 March, 2025
2025:KER:20254
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA,
1946
CRL.APPEAL NO. 477 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 09.02.2009 IN CC NO.66
OF 2004 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
SMT. S.ANITHA
FORMERLY FISHERIES SUB INSPECTOR, IN-CHARGE OF
MALSYA BHAVAN, ANJENGO.
BY ADVS.
SRIK.C.SURESH
SRI.S.K.AJAY KUMAR
NAVEEN THOMAS
PRIYA. H.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA,, ERNAKULAM.
2025:KER:20254
2
Crl.Appeal No.477 of 2009
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
OTHER PRESENT:
SRI KURIAN JOSEPH (ARAKKUNNAM), AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 05.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:20254
3
Crl.Appeal No.477 of 2009
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal No.477 of 2009
-----------------------------------------------------------
Dated this the 5th day of March, 2025
JUDGMENT
The accused in C.C.No.66 of 2004 on the files of the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram is the appellant. She was charged with offences punishable under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 409 of the Indian Penal Code, 1860 (IPC). The Special Court convicted and sentenced her as per the judgment dated 09.02.2009. The appellant impugns the said judgment in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).
2. The appellant was the Sub Inspector of Fisheries. She was in charge of Malsya Bhavan, Anchuthengu. She was also in charge of the evening branch of Fisheries Vanitha Bank. She functioned in those capacities from 04.06.1997 to 16.02.1998. Being a public servant, she allegedly had misappropriated various amounts. Going by the case of the 2025:KER:20254 4 Crl.Appeal No.477 of 2009 prosecution, she has collected Rs.3,14,415/- towards Savings- cum-Relief Scheme during the period from 04.11.1997 to 19.01.1998, of which she remitted in the bank only Rs.2,69,415/-. The balance amount of Rs.53,672/- was misappropriated. She had collected an amount of Rs.24,202.50 towards loan instalments from various persons during the period from 09.06.1997 to 13.02.1998, but she remitted only Rs.12,470/- in the bank. The balance amount of Rs.11,732.50/- was allegedly misappropriated by her. On 18.8.1997, the appellant withdrew an amount of Rs.50,000/- from the bank for being disbursed as loan to various fishermen. But, she disbursed only Rs.47,000/- and the balance amount of Rs.3,000/- was also misappropriated by her. The appellant took charge on 04.06.1997 and at that time, her predecessor entrusted with her a cash balance of Rs.150.85. Without accounting the said amount, the appellant misappropriated the same. Thus, she is indicted with a charge that she misappropriated a total amount of Rs.68,555.35.
3. The Special Court framed a charge and read over, which the appellant denied. Therefore, the prosecution has 2025:KER:20254 5 Crl.Appeal No.477 of 2009 examined PWs.1 to 8 and proved Exts.P1 to P27(b). After closing the prosecution evidence, the appellant was examined under Section 313(1)(b) of the Code. She denied all the incriminating circumstances appeared in evidence against her. She submitted a statement wherein she set up a defence case. Regarding the deficit in payment of amounts in bank, her contentions are that the peon attached to her office also used to collect the amount and the whole amounts she had collected were remitted with the bank by her personally or through the peon Sri.Suseel Kumar. She alleges that she was falsely implicated in the case and she was used to being harassed by PW1, the Deputy Director of Fisheries. It was further stated that she fell ill and could not attend the office for some time. When she reached the office on 13.02.1998 for rejoining, saw Smt.D.Anithakumari working in her place. She maintained that without any evidence, she was falsely implicated in the case. The aforementioned Sri.Suseel Kumar was examined as DW1 and Ext.D1, the service book of the appellant, was proved on her side.
2025:KER:20254 6 Crl.Appeal No.477 of 2009
4. The Special Court considered the entire evidence in detail. The evidence concerning collection of various amounts towards Savings-cum-Relief fund have been discussed in detail with reference to Exts.P4 to P6(d) receipt books and the statement of accounts issued from the bank evidencing payment. On the basis of the said documentary evidence and the oral testimonies of PW1, the then Deputy Director of Fisheries; PW5, the Secretary of the Fisheries Vanitha Bank; and PW7, the Chief Manager of Puthenchantha Branch of the State Bank of Travancore, it was concluded that an amount of Rs.53,672/- was not remitted out of the amounts collected by the appellant.
5. Insofar as the non-remittance of the loan amount collected by the appellant also, the Special Court considered the matter in detail. Ext.P16 is the statement of accounts issued from the Puthenchantha Branch of SBT. Ext.P8 series are the receipts based on which the appellant collected various amounts. After considering the oral testimonies of PW1 and PW7 with reference to the said documents, it was concluded that there was short remittance of Rs.11,732.50.
2025:KER:20254 7 Crl.Appeal No.477 of 2009
6. Ext.P10 is a cheque for an amount of Rs.50,000/- drawn in an account maintained in the name of the Matsyafed. As per the said cheque, Rs.50,000/- was found drawn by the appellant on 18.08.1997. Ext.P11 series are the receipts evidencing disbursing of various amounts as loan to the fishermen. After analyzing the evidence in the light of oral testimonies of PW5, PW7 and PW10, it was concluded that out of the said amount of Rs.50,000/-, the appellant disbursed only Rs.47,000/-. In that account, she had misappropriated Rs.3,000/-.
7. Ext.P1 is the file containing various documents concerning handing over of charge to the appellant and connected matters. Ext.P2 is the cash book maintained in the Anchuthengu office of the Matsyafed. With reference to the said documents and the oral testimony of PW3 from whom the appellant took charge, the Special Court rendered a finding that Rs.150.85 was handed over to the appellant as the cash balance available at the time of handing over of the charge. On the basis of the aforesaid findings, the Special Court found the appellant guilty and convicted. The appellant assails the aforesaid findings in this appeal.
2025:KER:20254 8 Crl.Appeal No.477 of 2009
8. Since the learned counsel, who filed the appeal on behalf of the appellant, failed to turn up, this Court appointed Advocate Sri.Kurian Joseph as Amicus Curiae to conduct the case on behalf of the appellant.
9. Heard the learned Amicus Curiae and the learned Special Public Prosecutor (Vigilance).
10. The learned Amicus Curiae, at the outset, raised a contention that the appellant was prosecuted without a valid sanction and for that reason itself the conviction is liable to set aside. The submission is that when the appellant was appointed by the Governor on compassionate ground under the dying-in-harness scheme, the authority competent to grant sanction for her prosecution is the Governor. However, sanction was accorded by the Director of Fisheries Department, which is invalid. Ext.P20 is the order of sanction. PW6, who was the Director of Fisheries Department accorded sanction as per Ext.P20. PW6 deposed that although the appointment of the appellant was under dying-in-harness scheme, the Director of Fisheries was the authority competent to appoint as well as remove the appellant from service. It 2025:KER:20254 9 Crl.Appeal No.477 of 2009 was suggested during cross-examination that PW6 did not have any authority to accord sanction to prosecute the appellant. But his assertion that the Director of Fisheries was the authority competent to remove the appellant from service was not challenged. Therefore, the said version of PW6 can certainly be acted upon.
11. Going by the provisions of Section 19(1)(c) of the PC Act, the authority competent to remove a public servant is competent to accord sanction for prosecution. The appellant being the Sub Inspector of Fisheries attached to the Matsyafed, its Director can remove her from service and therefore, Clause (c) of sub-section (1) of Section 19 of the PC Act is applicable in the case of the appellant. When PW6 in the capacity of Director of Fisheries accorded sanction, the contention of the learned Amicus Curiae that Ext.20 is invalid and insufficient to prosecute the appellant cannot be countenanced.
12. PW1 deposed before the court that on account of the unauthorised absence, charge of the office of the appellant was entrusted with Smt.D.Anithakumari. The said 2025:KER:20254 10 Crl.Appeal No.477 of 2009 fact is reflected from Ext.P1 file. It is seen that Smt.Anithakumari submitted a report to PW1 regarding the irregularities in the accounts of the office, which is Ext.P7(b). Based on the said report, this crime originated and culminated in filing of the final report against the appellant. The evidence of PW1 would further show that since the appellant was not reaching the office, Smt.Anithakumari was allowed to open the almirah in the office and to verify the records. The report would show that in the presence of Sri.Parameswaran Asari, a staff member in the Matsyafed, the almirah was opened and the records were examined. It is also the version of PW1 that Sri.Anilkumar, a cashier from his office, was directed to verify the accounts. He accordingly verified the accounts and found irregularities and embellishments in the accounts.
13. The submission of the learned Amicus Curiae is that when the aforesaid Smt.Anithakumari, Sri.Parameswaran Asari and Sri.Anilkumar were not examined, the very genesis of the prosecution became doubtful. Therefore, the evidence tendered by PW1 and other witnesses cannot be the basis for a conviction.
2025:KER:20254 11 Crl.Appeal No.477 of 2009
14. In answer to the said submission, the learned Special Pubic Prosecutor would submit that the collection of various amounts are borne by records and when the bank statement revealed that all the amounts so collected by the appellant were not remitted in the bank, the inevitable finding shall be that the deficit amount was misappropriated by the incumbent. In this regard, the learned Special Public Prosecutor places reliance on Exts.P3 to P6 and also Ext.P7(f) statement issued from the Puthenchantha Branch of the SBT.
15. Ext.P3 is the stock register, which would show how money receipt books were used during the tenure of the appellant. Exts.P4 to P6 series are carbon copies of receipts issued by the appellant to collect various amounts towards Savings-cum-Relief Scheme. Both PW1 as well as PW6, a U.D.Clerk in the office of the Fisheries Deputy Director, identified the handwriting of the appellant in the receipts. There cannot be any doubt that the collections corresponding to the said receipts were made by the appellant.
16. Of course, a statement based on those receipts was prepared by Smt.Anithakumari and the same was included in 2025:KER:20254 12 Crl.Appeal No.477 of 2009 Ext.P7(b) report submitted to PW1. When Smt.Anithakumari was not examined by the prosecution, the contents of Ext.P7(b) stands not proved. Ext.P7(a) report was obtained based on the receipt books obtained from the almirah in the Anchuthengu office of the Matsyafed while the appellant was absent in the office. The witness to the opening of the almirah Sri.Parameswaran Asari also was not examined. That may create some doubt. But the allegation against the appellant is that the amounts collected using Exts.P4 to P6 series receipts, which are in her handwriting, was not remitted in the bank So, non-examination of Smt.Anithakumari and Sri.Parameswaran Asari can have no relevance. The data as reflected from the documents alone are of relevant consideration. The report contained in Ext.P7(b) is only a secondary evidence and proof or not of that document has no bearing on the prosecution case when primary evidence is available. Collection of Rs.3,14,415/- by the appellant has been proved by Exts.P4 to P6 series receipts. It is then the responsibility of the appellant to remit all such amounts in the bank account. The procedure for collection and payment of the amount has been deposed 2025:KER:20254 13 Crl.Appeal No.477 of 2009 to by PW1 as well as PW5. Hence, there occurred non- remittance of amount in the bank in time. That amounts to misappropriation.
17. The learned Amicus Curiae after referring to the evidence of DW1 submitted that the deficit amount was in fact remitted by him and there might have occurred some delay, and for that alone the appellant cannot be convicted. True, delay of a few days in making payment of the amount collected, that by itself may not be an offence. See: N.K.Illiyas v. State of Kerala [(2012) 12 SCC 748], Thankappan v. State of Kerala [1965 KLJ 404] and P.P.Mohanan v. Stte of Kerala [2016 (3) KLJ 539].
18. During cross-examination of DW1, he admitted that the amounts he claimed to have remitted in the bank were entrusted with him not by the appellant but by the successor Fisheries Sub Inspector, Smt.Anithakumari. Ext.P7(f) is the statement concerning account Nos.310109 and 310116 maintained by the Matsyafed with Puthenchantha Branch of SBT. It is seen from these documents that the remittances referred to by DW1 were on 24.02.1998 and 27.02.1998.
2025:KER:20254 14 Crl.Appeal No.477 of 2009 Those remittances were much after the appellant was relieved from her office. Therefore, the probability is also that the said amounts were not entrusted by the appellant with DW1. Rather, DW1 candidly admitted that the said amounts were entrusted with him by Smt.Anithakumari. In the said circumstances, the evidence of DW1 is not of avail to the appellant to contend that the entire amount was remitted by her in the bank. In the view of the aforementioned evidence and circumstances, the finding of the Special Court that there was a short remittance of Rs.53,672/- in amount collected by the appellant towards Savings-cum-Relief Scheme does not suffer from any infirmity.
19. Ext.P8 series are receipts, wherein Sl.Nos.47 to 82 bear the signatures of the appellant. The total amount collected as per Ext.P8 series receipts during the period from 09.06.1997 to 13.2.1998 is Rs.24,202.50. Ext.P16 is the statement of account issued from Puthenchantha Branch of SBT concerning account No.310115. The total amount remitted by the appellant is reflected from these documents. PW5, the Secretary of the Fisheries Vanitha Bank explained 2025:KER:20254 15 Crl.Appeal No.477 of 2009 the procedure for making payment in the bank and getting endorsements in the pass books. After analyzing the said evidence, the Special Court found that there was a shortage in the amount remitted. When the total amount collected can be verified from Ext.P8 receipts, and the remittance is reflected from the statement of accounts, the difference can easily be gathered and therefore the findings of the Special Court in this regard also cannot be found fault with.
20. Ext.P10 is the cheque for Rs.50,000/- drawn in the name of the Secretary of Fisheries Vanitha Bank, Poonthura. The said cheque was issued corresponding to the request from the appellant in Ext.P19 application. The handwriting in Ext.P19 and the signature on the reverse of Ext.P10 were identified to be that of the appellant by PW5. PW1 also confirmed that fact. During examination under Section 313 of the Code, the appellant admitted the fact that such an amount was withdrawn for the purpose of disbursing as loan to the fishermen. Of course, she explained that she disbursed the entire amount. The prosecution has collected all the receipts based on which loans were disbursed to fishermen.
2025:KER:20254 16 Crl.Appeal No.477 of 2009 Ext.P11 series are the receipts. There are only ten receipts and the total amount disbursed in terms of Ext.P11 series is Rs.47,000/-. Although the appellant claimed that she disbursed whole amount as loan to fishermen, in the absence of any evidence regarding disbursal of Rs.3,000/-, the possible conclusion is that the said amount was kept by herself without being disbursed to the fishermen.
21. In regard to the cash balance handed over by PW3 to the appellant, there is no worthwhile contention for the appellant. PW3 deposed before the court regarding that aspect. The charge handing over report and the cash book carry the signature of the appellant acknowledging receipt of such an amount. She is, therefore, obliged to account the said amount, but she failed.
22. The view taken by this Court in Ravinathan L. v. State of Kerala [2023 (4) KHC 530] is that the once the entrustment of the amount with the accused is proved, unless the accused establishes by preponderance of probability that he has discharged his duty to disburse the said amount to the beneficiary, he will be liable for misappropriation for that 2025:KER:20254 17 Crl.Appeal No.477 of 2009 amount. Misappropriation, even for a short period, would attract offence.
23. In view of the law laid down in the aforesaid decisions, the conclusion is irresistible that the appellant has committed misappropriation of the amount as alleged in the charge. The findings of the Special Court leading to the conviction of the appellant cannot be found fault with. So, there is no reason to interfere with the conviction of the appellant. Her conviction is confirmed.
24. The appellant was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.35,000/- for the offences under Section 13(1)(c) read with Section 13(2) of the PC Act and rigorous imprisonment for a period of two years and to pay a fine of Rs.35,000/- for the offence under Section 409 of the IPC. The appellant is a woman. As is seen from her statement under Section 313 of the Code, she had been suffering from various ailments. Considering the nature of the offence, the amount involved and the circumstances of the appellant, the sentence is liable to be modified. The period of substantive sentence is reduced 2025:KER:20254 18 Crl.Appeal No.477 of 2009 to rigorous imprisonment for one year both under Section 13(2) of the PC Act and under Section 409 of the IPC. The amount of fine and the default sentence are maintained. The term of the substantive sentence shall run concurrently.
The appeal is thus allowed in part.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr