Kerala High Court
Pushpakumary vs State Of Kerala on 4 March, 2026
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF MARCH 2026/13TH PHALGUNA, 1947
CRL.A NO. 1353 OF 2009
AGAINST THE JUDGMENT DATED 24.06.2009 IN CC NO.21
OF 2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:
PUSHPAKUMARY
FORMERLY CASHIER,
OFFICE OF THE SUPERINTENDENT OF POLICE,
TELECOMMUNICATION HEADQUARTERS,PATTOM,
THIRUVANANTHAPURAM.
BY ADVS.
SMT.P.MAYA
SHRI.K.ARAVIND MENON
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2026, ALONG WITH CRL.A.1382/2009, 1383/2009 AND
CONNECTED CASES, THE COURT ON 04.03.2026 DELIVERED THE
FOLLOWING:
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF MARCH 2026/13TH PHALGUNA, 1947
CRL.A NO. 1382 OF 2009
AGAINST THE JUDGMENT DATED 24.06.2009 IN CC NO.23
OF 2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:
PUSHPAKUMARY
FORMERLY CASHIER OFFICER OF THE SUPERINTENDENT
OF POLICE, TELECOMMUNICATION HEADQUARTERS,
PATTOM, THIRUVANANTHAPURAM.
BY ADV SMT.P.MAYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2026, ALONG WITH CRL.A.1353/2009 AND CONNECTED
CASES, THE COURT ON 04.03.2026 THE FOLLOWING:
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF MARCH 2026/13TH PHALGUNA, 1947
CRL.A NO. 1383 OF 2009
AGAINST THE JUDGMENT DATED 24.06.2009 IN CC NO.22
OF 2005 OF ADDITIONAL SESSIONS COURT.-TRIAL OF ABKARI
ACT CASES, NEYYATTINKARA
APPELLANT/1ST ACCUSED:
PUSHPAKUMARY
FORMERLY CASHIER,
OFFICER OF THE SUPERINTENDENT OF POLICE,
TELECOMMUNICATION HEADQUARTERS, PATTOM,
THIRUVANANTHAPURAM.
BY ADV SMT.P.MAYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2026, ALONG WITH CRL.A.1353/2009 AND CONNECTED
CASES, THE COURT ON 04.03.2026 DELIVERED THE FOLLOWING:
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF MARCH 2026/13TH PHALGUNA, 1947
CRL.A NO. 1389 OF 2009
AGAINST THE JUDGMENT DATED 24.06.2009 IN CC NO.25
OF 2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:
PUSHPAKUMARY
FORMERLY CASHIER, OFFICER OF THE SUPERINTENDENT
OF POLICE, TELECOMMUNICATION HEADQUARTERS,
PATTOM, THIRUVANANTHAPURAM.
BY ADV SMT.P.MAYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULANM
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2026, ALONG WITH CRL.A.1353/2009 AND CONNECTED
CASES, THE COURT ON 04.03.2026 DELIVERED THE FOLLOWING:
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF MARCH 2026/13TH PHALGUNA, 1947
CRL.A NO. 1391 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 24.06.2009 IN CC
NO.24 OF 2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:
PUSHPAKUMARY
FORMERLY CASHIER, OFFICER OF THE SUPERINTENDENT
OF POLICE, TELECOMMUNICATION HEADQUARTERS,
PATTOM, THIRUVANANTHAPURAM.
BY ADV SMT.P.MAYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2026, ALONG WITH CRL.A.1353/2009 AND CONNECTED
CASES, THE COURT ON 04.03.2026 DELIVERED THE FOLLOWING:
2026:KER:19595
CRL.A.NOS.1353, 1382, 1383
1389 & 1391 OF 2009
6
CR
COMMON JUDGMENT
Dated this the 4th day of March, 2026 These appeals have been filed under Section 374(2) of the Code of Criminal Procedure, challenging common judgment dated 24.06.2009 in C.C.Nos.21/2005, 22/2005, 23/2005, 24/2005 and 25/2005 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, whereby the appellant, who got arrayed as the first accused, was convicted and sentenced in all the cases while acquitting the second accused. The State of Kerala, represented by the Vigilance and Anti-Corruption Bureau (VACB) is the respondent in all these appeals.
2. Heard the learned Senior Counsel for the appellant/1st accused and the learned Special Public Prosecutor appearing for the VACB in detail. Perused the relevant records, including the decisions placed by the learned Special Public Prosecutor.
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 7
3. In C.C.No.21/2005, the prosecution case in brief as under:
The first accused was working as Cashier and the second accused as Administrative Assistant in the office of the Superintendent of Police (hereinafter referred to as 'SP' for short), Telecommunication Headquarters, Pattom, Thiruvananthapuram, during the period from 1995 to 1997.
Being public servants, they were entrusted with the Government cash and documents of the above said office.
They entered into criminal conspiracy and in pursuance of the said conspiracy, they dishonestly and fraudulently misappropriated or otherwise converted to their own use an amount of ₹45,495/- (Rupees forty five thousand four hundred and ninety five only), which was drawn during the period from 07.06.1996 to 27.07.1997 through three contingent bill Nos.52/96-97, 79/96-97 and 95/96-97 from the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 8 Sub Treasury, Vellayambalam, towards the cost of electricity charges of the office of the SP, Telecommunication Headquarters. They did not remit the said amount and misappropriated the same. Thereby accused Nos.1 and 2 committed offences punishable under Sections 13(2) r/w.
13(1)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act, 1988' for short) as well as under Sections 409 and 120B of the Indian Penal Code (hereinafter referred to as 'IPC' for short).
4. In C.C.No.22/2005, the prosecution case in brief as under:
The first accused was working as Cashier and the second accused as Administrative Assistant in the office of the SP, Telecommunication Headquarters, Pattom, Thiruvananthapuram, during the period from 1995 to 1997.
Being public servants, they were entrusted with the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 9 Government cash and documents of the above said office.
They entered into criminal conspiracy and in pursuance of the said conspiracy, an amount of ₹89,030/- (Rupees eighty nine thousand and thirty only) was withdrawn between the period from 06.12.1996 and 07.05.1997 through four contingent bill Nos.108/97-89, 160/97-98, 203/97-98 and 5/97-98 from the Sub Treasury, Vellayambalam, towards the cost of electricity charges of the office of the SP, Telecommunication Headquarters and they did not remit the said amount for the said purpose and dishonestly misappropriated the said amount and thereby committed offences punishable under Sections 13(1)(c) r/w 13(2) of the PC Act, 1988 as well as under Sections 409 and 120B IPC.
5. In C.C.No.23/2005, the prosecution case in brief as under:
The first accused was working as Cashier and the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 10 second accused as Administrative Assistant in the office of the SP, Telecommunication Headquarters, Pattom, Thiruvananthapuram, during the period from 1995 to 1997.
They being public servants were entrusted with the Government cash and documents of the above said office.
They entered into criminal conspiracy and in pursuance of the said conspiracy, they committed criminal breach of trust and had withdrawn an amount of ₹29,650/- (Rupees twenty nine thousand six hundred and fifty only) on 10.06.1997 as per contingent bill No.20/97-98 from the Sub Treasury, Vellayambalam, towards the cost of electricity charges of the office of the SP, Telecommunication Headquarters and did not remit the money for the said purpose and misappropriated the said amount. They also misappropriated an amount of ₹54,700/- (Rupees fifty four thousand and seven hundred only) on 22.07.1999 by making false entry in the cash book so as to appear that they had disbursed vide 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 11 Money Memo No.337/96-97 without actually disbursing the said amount and thus they misappropriated a total amount of ₹84,350/- (Rupees eighty four thousand three hundred and fifty only). It is again alleged that they caused to destroy or remove the relevant money memo books from that office with the intention to cause disappearance of evidence that too for escaping from the aforesaid offence and they also destroyed or altered or mutilated the aforesaid records for the purpose of misappropriating a total amount of ₹84,350/- (Rupees eighty four thousand three hundred and fifty only) and thereby committed the offences punishable under Sections 13(2) r/w.13(1)(c) of the PC Act, 1988 and under Sections 409, 477A, 201 and 120B of IPC.
6. The prosecution case in C.C.No.24/2005 is as follows:
The first accused was working as Cashier and the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 12 second accused was working as the Administrative Assistant in the office of the SP, Telecommunication Headquarters, Pattom, Thiruvananthapuram, during the period from 1995 to 1997. The accused, being public servants, were entrusted with the Government cash and documents of the above said office and they entered into criminal conspiracy and in pursuance of the said conspiracy, committed criminal breach of trust during the period from 31.07.1996 and 20.12.1996.
They misappropriated a total amount of ₹54,978/- (Rupees fifty four thousand nine hundred and seventy eight only) by making false entry in the cash book so as to show that the said amount was disbursed vide Money memo No.374/96-97 on 31.07.1996, 383/96-97 on 02.08.1996 and 781/96-97 on 20.12.1996, without actually disbursing the said amounts and thereby misappropriated the said money and the accused also did cause certain evidence of the said offence to disappear by destroying or removing the relevant Money 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 13 Books from the office with the intention of escaping from the aforesaid offence and they also made false entry in the cash book so as to appear that the said amounts were disbursed and thus with intent to defraud, destroyed or altered or mutilated the aforesaid records and thus misappropriated a total amount of ₹54,978/- (Rupees fifty four thousand nine hundred and seventy eight only) and thereby committed offences punishable under Sections 13(2) r/w 13(1)(c) of the PC Act, 1988 and under Sections 409, 477-A, 201 and 120B of IPC.
7. In C.C.25/2005, the prosecution case is as follows:
The first accused was working as Cashier and the second accused as Administrative Assistant in the office of the SP, Telecommunication Headquarters, Pattom, Thiruvananthapuram during the period from 1995 to 1997. Being public servants, the accused 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 14 were entrusted with the Government cash and documents of the above said office. They entered into criminal conspiracy and in pursuance of the said conspiracy, committed criminal breach of trust and misappropriated a total amount of ₹87,158/- (Rupees eighty seven thousand one hundred and fifty eight only) during the period between 11.04.1997 and 24.06.1997 by making false entry in the cash book so as to appear that the above said amounts were disbursed vide Money memo No.28/97-98 on 11.04.1997, M.M.No.105/97- 98 and M.M.No.106/97-98 on 08.05.1997 and M.M
No.208/97-98 on 24.06.1997 without actually disbursing the above said amount. Accused Nos.1 and 2 also did cause certain evidence of the said offence to disappear, destroyed or removed the relevant Money Books from that office and with the intention of escaping from the aforesaid offence they also made false entry in the cash book so as to appear that the said amount was disbursed and thus they willfully with 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 15 intent to defraud, destroyed or altered or mutilated the aforesaid records and thus misappropriated a total amount of ₹87,158/- and thereby committed the offences punishable under Sections 13(2) r/w. 13(1)(c) of the PC Act, 1988 as well as under Sections 409, 477A, 201 and 120B of IPC.
8. The Special Judge, on getting the final report filed in these cases, completed the pre-trial formalities and jointly tried these cases and recorded evidence. PW1 to PW25 were examined and Ext.P1 to P54 were marked on the side of the prosecution. Exts.D1 to D20 were tendered in evidence at the instance of the accused. Thereafter, the learned Special Judge heard both sides in detail and finally, convicted the accused and sentenced the first accused as under:
"C.C.21/2005
For the conviction entered against A1 for the offence u/s.13(2) r/w 13(1)(c) of P.C.Act, 1988, she is sentenced to undergo RI for a period of two years and in addition she shall pay a fine of ₹25,000/- (Rupees Twenty Five Thousand only) and in default 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 16 of payment of fine, she shall undergo RI for a period of six months and for conviction entered against A1 for the offence under S.409 of IPC, she is sentenced to undergo RI for a period of two years and to pay a fine of Rs.21,000/- (Rupees Twenty One Thousand only) with a default clause of RI for six months. The substantive sentences shall run concurrently.C.C.22/2005
For the conviction entered against A1 for the offence u/s.13(2) r/w 13(1)(c) of P.C.Act, 1988, she is sentenced to undergo RI for a period of two years and in addition she shall pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, she shall undergo RI for a period of six months and for conviction entered against A1 for the offence under S.409 of IPC, she is sentenced to undergo RI for a period of two years and to pay a fine of Rs.40,000/- (Rupees Forty Thousand only) with a default clause of RI for six months. The substantive sentences shall run concurrently.CC 23/2005
For the conviction entered against A1 for the offence u/s.13(2) r/w 13(1)(c) of P.C. Act, 1988, she is sentenced to undergo RI for a period of two years and in addition she shall pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, she shall undergo RI for a period of six months and for conviction entered against A1 for the offence under S.409 of I.P.C., she is sentenced to undergo RI for a period of two years and to pay a 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 17 fine of Rs.35,000/- (Rupees Thirty Five Thousand only) with a default clause of RI for six months. The substantive sentences shall run concurrently.CC.24/2005
For the conviction entered against A1 for the offence u/s.13(2) r/w 13(1)(c) of the P.C.Act, 1988, she is sentenced to undergo RI for a period of two years and in addition she shall pay a fine of Rs.35,000/- (Rupees Thirty five Thousand only) and in default of payment of fine, she shall undergo RI for a period of six months and for the conviction entered against A1 under S.409 of IPC , she is sentenced to undergo RI for a period of two years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand only) with a default clause of RI for six months and for the conviction entered against A1 under S.201 of IPC, she shall undergo RI for a period of six months and for the conviction entered against A1 under S.477-A of IPC, she shall undergo RI for a period of two years The substantive sentences shall run concurrently.
CC.25/2005For the conviction entered against A1 for the offence u/s.13(2) r/w 13(1)(c) of P.C. Act, 1988, she is sentenced to undergo RI for a period of two years and in addition she shall pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, she shall undergo RI for a period of six months and for conviction entered against A1 for a period of six months and for conviction entered against A1 for the offence under Section 409 of IPC, 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 18 she is sentenced to undergo RI for a period of two years and to pay a fine of Rs.37,500/- (Rupees Thirty Seven Thousand and Five Hundred only) with a default clause of RI for six months and for the conviction entered against A1 under S.201 of IPC, she shall undergo RI for a period of six months and for the conviction entered against A1 under S.477-A of IPC, she shall undergo RI for a period of two years. The substantive sentences shall run concurrently."
9. The learned Senior Counsel appearing for the appellant/1st accused in all these appeals filed argument notes contending that the common verdict impugned is flawed and the learned Special Judge rendered the judgment without properly appreciating the evidence and entered into wrong findings without support of materials. The points argued and specifically stated in the argument notes are mainly on four heads and the same are as under:
"1) NON-AVAILABILITY OF GD ENTRIES The prosecution sent wireless and teleprinter (T.P.) messages to all sub-units to ascertain if they had received the money.
Whereas, PW25 specifically testified that the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 19 General diary (which should have recorded the departure of messengers and warrants) was not being maintained correctly during the relevant period.
Properly maintained General Diary (G.D.) entries potentially could have revealed the identity of messengers from sub-units, their rank, their departure times, and their bus or rail warrant numbers. Had these entries been properly made, they would have provided a documented trail of who was entrusted with the cash for delivery to specific units.
The appellant cannot be penalized for the office's failure to maintain said records.
2) LACK OF CLARITY REGARDING T.P WIRELESS MESSAGES The trial court relied on wireless messages from sub-units claiming that they did not receive the money. Such messages are not conclusive proof and constitutes "negative evidence". No substantive evidence is brought on record so as to establish who transmitted these messages and to prove the content of the same.
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 20 PW25, when specifically questioned during cross-examination as to whether he had enquired about the particulars of P13 series T.P wireless messages, states that no seizure pertaining to the same has been done.
Furthermore, in the absence of specific GD entries, there is no clarity as to the representatives of the sub-units who had answered involved in such wireless transmissions.
3) SANCTIONING AUTHORITY NOT EXAMINED The prosecution proved the sanction as regards A1 through PW21 (Senior Superintendent at the DGP Headquarters), who deposed that all records were forwarded to the Director General of Police (Hormis Tharakan). After verifying the records, the DGP issued the Ext. P44 sanction order. PW21 further affirmed that the DGP was empowered to terminate A1 from service.
However, a perusal of the cross-examination of PW21 would reveal that he doesn't know what records where perused by Director General of Police (Hormis Tharakan) while according P44 sanction.
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 21 Despite the fact that, he admits that the investigating officer had directed him to record the statement of the authority who had perused the records whilst according prosecution sanction, PW23 offers the following explanation regarding the non-questioning of the sanctioning authority:
"VACB Director circular- ൽ prosecution sanction authority government secretary മാരോ തത്തുല്യമായ പദവിയിൽ ഇരിക്കുന്ന ഉദ്യോഗസ്ഥരോ ആണെങ്കിൽ അവരെ നേരിൽ കണ്ടു ചോദിക്കേണ്ടത്തില്ല എന്നും prosecution sanction issue ചെയ്യുന്നതിന് ഫയലുകളും റിക്കോർഡുകളും കൈകാര്യം ചെയ്തിട്ടുള്ള prosecution authority യുടെ കീഴിൽ ഉള്ള ഉദ്യോഗസ്ഥന്റെ മൊഴി prosecution നൽകിയ authority ക്ക്വേണ്ടി രേഖപ്പെടുത്തിയാൽ മതിയെന്നും നിർദേശം തന്നിട്ടുള്ളതിനാൽ ഞാൻ prosecution authority യെ നേരിൽ കണ്ടു ചോദിക്കാത്തത്."
The same would raise pertinent questions regarding the application of mind by the aforesaid authority and the prosecution has not showcased any reason whatsoever as to why the sanctioning authority was not examined.
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 22
4) SUBSTANTIVE SENTENCES IN EACH OF THE CASES OUGHT TO HAVE BEEN THE MINIMUM SENTENCE AT THE TIME & PRONOUNCED TO RUN CONCURRENTLY It is humbly submitted that the corresponding minimum sentences for the offences arrayed ought to have been awarded. Furthermore, although the substantive sentences in each of the cases were pronounced to run concurrently, the trial court, ought to have pronounced that the subsequent sentences must run concurrently with the sentence already awarded in CC No. 21 of 2005 in accordance with section 427(1) of the Cr.PC."
10. The learned Special Public Prosecutor supported the prosecution case and negatived the contentions raised by the learned Senior Counsel for the appellant/1st accused regarding non-examination of the sanctioning authority. It is submitted by the learned Special Public Prosecutor that the settled legal position is that sanction order issued by the sanctioning authority would 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 23 show application of mind and perusal of the entire prosecution records at the time of granting sanction, and in such a case, examination of the sanctioning authority is not at all necessary. It is also pointed out that there is no mandate further that the statement of the sanctioning authority also to be recorded by the Investigating Officer as part of investigation and therefore, the said challenge cannot succeed.
11. The learned Special Public Prosecutor relied on the decision of the Apex Court in State of Madhya Pradesh V. Jiyalal, reported in (2009) 15 SCC 72 : (2010) 2 SCC (Cri) 272 and the decision of this Court in Nujum P.A. v. State of Kerala, reported in 2025 KHC OnLine 1031 to buttress this argument that as regards the non-examination of the author of Ext.P44, non-examination of the author is of least consequences when the sanction order itself will speak application of mind. Paragraph No.6 of the decision in Nujum P.A.'s case (supra), reads as under:
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 24 "6. Repelling this contention the learned Special Public Prosecutor would submit that examination of the author of the person who issued sanction is not at all necessary and in order to buttress this contention she placed reliance on the decision of the Apex Court reported in (2009) 15 SCC 72 State of Madhya Pradesh v. Jiyalal wherein paragraph 8 the Apex Court held as under:-
8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the respondent to question the genuineness or validity of the sanction order before the learned Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution."
12. According to the learned Special Public Prosecutor, in this case, entrustment of money at the hands of the first accused, who admittedly held the post of cashier, 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 25 had been proved substantially and the accused failed to account for the same. In such view of the matter, finding of the Special Court regarding commission of the offences in all these cases would sustain and there is no necessity to interfere with the verdict impugned.
13. On appraisal of the rival contentions, the following questions arise for consideration:
1. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 13(2) r/w.13(1)(c) of the PC Act, 1988 in C.C.No.21/2005?
2. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 409 of IPC in C.C.No.21/2005?
3. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 13(2) r/w.13(1)(c) of the PC Act, 1988 in C.C.No.22/2005?
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 26
4. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 409 of IPC in C.C.No.22/2005?
5. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 13(2) r/w.13(1)(c) of the PC Act, 1988 in C.C.No.23/2005?
6. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 409 of IPC in C.C.No.23/2005?
7. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 13(2) r/w.13(1)(c) of the PC Act, 1988 in C.C.No.24/2005?
8. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 201 of IPC in C.C.No.24/2005?
9. Whether the Special Court went wrong in finding that the appellant/1st accused 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 27 committed offence punishable under Section 409 of IPC in C.C.No.24/2005?
10. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 477A of IPC in C.C.No.24/2005?
11. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 13(2) r/w.13(1)(c) of the PC Act, 1988 in C.C.No.25/2005?
12. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 409 of IPC in C.C.No.25/2005?
13. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 477A of IPC in C.C.No.25/2005?
14. Whether the Special Court went wrong in finding that the appellant/1st accused committed offence punishable under Section 201 of IPC in C.C.No.25/2005? 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 28
15. Whether the examination of the Sanctioning Authority to prove the sanction is mandatory?
15. Whether the common verdict under challenge would require interference?
16. The order to be passed.
Point No. 15
14. The prosecution case is that the 1 st accused, while working as the cashier, and the 2nd accused, while working as the Administrative Assistant in the office of the SP, Telecommunication Headquarters, Thiruvananthapuram, during the period between 1995 to 1997, enchashed the money to be paid towards electricity charges in respect of consumer No.155 in the said office at Pattom, Thiruvananthapuram, and thereafter, failed to remit the electricity charges and the 2 nd accused, in connivance with the 1st accused, misappropriated the same and failed to account for the same.
15. As regards the sanction, which is marked as Ext.P44, is concerned, as pointed out by the learned Senior 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 29 Counsel for the appellant/1st accused, the same was issued by Sri.P. K. Hormis Tharakan, IPS, the then DGP. However, he was not examined to prove the sanction. Instead PW21, the Senior Superintendent, worked at the DGP, Headquarters office from 30.07.2003 to 30.11.2005, was examined to prove Ext.P44 by identifying the signature of Sri.P.K.Hormis Tharakan, IPS. According to the learned Senior Counsel for the appellant/1st accused, in this case, Ext.P44 sanction was not properly proved by examining its author. However, the learned Special Public Prosecutor drew attention of this Court to Ext.P44 to contend that the same would categorically show that for the purpose of granting sanction the entire prosecution records were placed before the sanctioning authority and as indicated in paragraph No.3 of Ext.P44, (paragraph number was not specifically numbered) it has been stated that the sanctioning authority fully and carefully examined the materials before him in regard to the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 30 allegations in V.C.No.7/1998 of VACB, Thiruvananthapuram, by describing the allegation of misappropriation to the tune of ₹3,61,011/- (Rupees three lakh sixty one thousand and eleven only) during the period between 01.11.1995 to 26.06.1997. Therefore, in view of the misconduct of falsification and causing disappearance of evidence by raising entries in the cash book and money memo book. The sanction authority satisfied that Mrs.V.Pushpakumari (A1) and Sri.K.Gopi (A2) should be prosecuted and accordingly, sanction was issued. Therefore, the challenge against sanction would not succeed.
16. As regards to the validity of sanction, the argument advanced by the learned Special Public Prosecutor is convincing as settled in Jiyalal's case (supra) and Nujum P.A.'s case (supra) and therefore, the challenge against the sanctity of sanction is repelled.
17. Point Nos.1 to 14 and 16 and 17 Coming to the evidence available in C.C.No.21/2005, the following are relevant. That is to say, 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 31 Ext.P21 is the contingent bill for ₹21,273/- (Rupees twenty one thousand two hundred and seventy three only) out of which an amount of ₹16,935/- (Rupees sixteen thousand nine hundred and thirty five only) was shown as electricity charges for April 1996 due from consumer No.155, office of the SP Telecommunication, Head Quarters. PW5 had given evidence that Ext. P18 Treasury Bill Book along with Ext.P21 contingent bill were entrusted with him by the appellant/1st accused for encashing the amount from Sub Treasury Vellayambalam. Ext.P18 (c) is the endorsement of Ext.P21 contingent bill in Ext.P18 Treasury Bill Book. PW5 had further testified that he had encashed Ext.P21 contingent bill from the Sub Treasury Vellayambalam and handed over the amount to the 1st accused. In Ext.P3 Cash Book, the receipt column shows an amount of ₹21,273/-, (Rupees twenty one thousand two hundred and seventy three only) collected by way of Ext.P21 Contingent Bill, which had been received by 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 32 the 1st accused, as evident from Ext.P3(a). PW1 Identified the initials of the 1st accused against Ext.P3(a) endorsement and also identified the hand writing of the 1 st accused in Ext.P3(a) endorsement which was verified by A2. In page No.22 of Ext.P8 contingent register, i.e., Ext.P8(a), the endorsement of Ext.P21 contingent Bill was identified by PW17. In view of the above, it is proved that the amount covered by Ext.P21 contingent bill was entrusted with the 1st accused and she had dominion over the same and out of the said amount ₹16,935/- is the Electricity Charge for April 1996.
18. Ext. P22 is the contingent Bill for an amount ₹17,228/- (Rupees seventeen thousand two hundred and twenty eight only), which was the Electricity charges of consumer No.155 for the month of May 1996. PW5 had further deposed that Ext.P22 along with Ext.P18 Treasury Bill Book were entrusted with him for encashing the same from 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 33 Treasury. Ext.P18(d) is the endorsement in Ext.P18 Bill Book with respect to Ext.P22. PW5 had deposed that he had encashed the money from the Sub Treasury and entrusted the same with the 1st accused. In Ext.P3 Cash Book, the receipt column i.e., Ext.P3(b) the amount covered by Ext.P22 Contingent Bill was shown as received by the 1st accused. PW1 identified the hand writing of the 1 st accused in Ext.P3(b). PW17 identified the endorsement in the contingent register as Ext.P8(b) and stated that the same was endorsed by the 1st accused and signed and sealed by A2. So it is proved that the amount covered by Ext.P22 contingent bill (₹17,228/-) was entrusted with the 1st accused and she was having dominion over the same.
19. Ext.P23 is the Contingent Bill covering a total amount of ₹18,856/- (Rupees eighteen thousand eight hundred and fifty six only). Out of the said amount, a sum of ₹11,332/- (Rupees eleven thousand three hundred and thirty 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 34 two only) was shown towards electricity charges for the month of June 1996. Ext.P23 bill had been entrusted with PW5 for encashing the same from the Sub Treasury. PW5 deposed that Ext.P23 contingent bill along with Ext.P18 Treasury Bill Book were entrusted with him. Ext.P18 (e) is the endorsement of Ext.P23 contingent bill in Ext.P18 Treasury Bill Book. PW5 further deposed that the said amount was encashed from the Treasury and he handed over the money to the 1st accused. PW17, the Head Clerk identified Ext.P8(c) endorsement in the contingent register with respect to Ext.P23. Ext.P3(c) endorsement in Ext.P3 Cash Book would go to show that an amount of ₹18,586/- (Rupees eighteen thousand five hundred and eighty six only) was received by the 1st accused and the 1st accused in her own hand writing made the endorsement which were identified by PW1. PW1 also stated that in the said endorsement, accused Nos. 1 and 2 subscribed their 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 35 signatures. Thus it is proved that an amount of ₹18,586/- covered by Ext. P23 was received by the 1 st accused and she was having dominion over the amount of ₹11,332/- which was the electricity charges. PW12,, the SP Telecommunication Head Quarters, deposed that the amounts as per Exts. P21, P22 and P23 contingent bills were encashed pursuant to Exts.P21(a), P22(a) and P23(a) proceedings were issued by him for encashment and these amounts were encashed by the 1st accused. The total amount misappropriated by the 1st accused in CC No.21/2005 as per the amount covered in Ext.P21 (₹16,935/-), Ext.P22 (₹17,228/-) and Ext.P23 (₹11,332/-) were ₹45,495/- (Rupees forty five thousand four hundred and ninety five only).
20. Coming to the evidence available in C.C.No.22/2005, the following are relevant. Ext. P19 is the Contingent Bill which is for an amount of ₹18,865/- out of 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 36 this amount, ₹10,548/- (Rupees ten lakh five hundred and forty eight only) was the electricity charges for consumer No.155 for July 1996. PW4, the Peon attached to SP Office, had deposed that, as directed by the 1 st accused, he had encashed the Contingent Bill and entrusted the money with the 1st accused. Ext.P18 is the Treasury Bill Book and Ext.P18(a) is the endorsement with respect to Ext.P19 Contingent Bill. Ext. P4 is the cash book for the period 1996- 1997 and in the receipt column of Ext.P4(a), it was stated that the amount covered by Ext.P19 contingent bill was received. The same was signed by accused Nos.1 and 2 and signatures of accused Nos.1 and 2 were identified by PW1. So it is proved that the amount covered by Ext.P19 contingent bill was entrusted with the 1 st accused and she is having dominion over the same. Ext.P20 is the Contingent Bill for ₹44,336/-. PW17 had deposed that as per Ext.P9 Contingent Register, the details of Ext.P20 contingent bills is 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 37 recorded in Ext.P9(a). In Ext. P4(a) cash book, details of contingent bill was recorded. Out of the total amount, ₹31,331/- was electricity charges for the months of August and September 1996. In Ext.P4(a), in the receipt column, this amount was shown as received by the 1st accused. Hence, it is proved that an amount of ₹31,331/- covered by Ext.P19 contingent bill was encashed and entrusted with the 1st accused.
21. Ext.P27 is the contingent bill for ₹57,367/- (Rupees fifty seven thousand three hundred and sixty seven only). Out of ₹57,367/-, ₹33,011/- is the electricity charges for November and December 1996 and January 1997. Ext.P26 is the Treasury Bill Book for the period from 18.3.1997 to 31.03.1997. As per Ext.P26(a), Ext.P27 Contingent bill is incorporated in the Treasury bill book. PW7 had deposed that as directed by the 1 st accused, he encashed Ext.P27 contingent bill from the treasury and 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 38 entrusted the amount with the 1st accused. PW17, Head Clerk, stated that in Ext.P9 contingent register, the details of Ext.P27 contingent bill was mentioned. PW17 had identified the hand writing of the 1st accused in the contingent register and the signature and seal of accused No.2. Ext.P5 is the cash book for the period 1996-1997 and in the receipt column in Ext.P5(a), the amount covered by Ext.P27 was seen received on 31.3.1997. PW1 identified the signature and initials of the 1st accused and the second accused in the said endorsement. Therefore, it is evident that amount covered by Ext.P27 was entrusted with accused Nos.1 and 2.
22. Ext.P24 is the contingent bill for ₹21,890/- (Rupees twenty one thousand eight hundred and ninety only). Out of which ₹14,149/- (Rupees fourteen thousand one hundred and forty nine only) was the Electricity Charges for February 1997. PW6 had deposed that he had encashed the contingent bill and entrusted the money with the 1 st 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 39 accused. Ext. P15 is the Cash Book for 1997-1998. Ext.P15
(a), the receipt column in Ext.P15, will go to show that the amount covered by Ext. P24 contingent bill was received by the 1st accused. So it is proved that the 1st accused had received a total sum of ₹89,039/- (₹10,548+₹31,331+ ₹33,011+₹14,149) covered by the 4 Contingent Bills drawn towards the electricity charges for the period from July 1996 to February 1997.
23. Coming to the evidence available in CCNo.23/2005, the following are relevant. Ext.P25 is the contingent bill for ₹30,447/- (Rupees thirty thousand four hundred and forty seven only). Out of which an amount of ₹29,650/- (Rupees twenty nine thousand six hundred and fifty only) was towards the electricity charges for March and April 1997. PW17 deposed that Ext.P25 contingent bill was endorsed in Ext.P10 Contingent Register and Ext.P10(b) is the endorsement regarding Ext.P25 Contingent Bill. PW6 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 40 deposed that Ext.P25 contingent bill was entrusted with him for encashment from the treasury. PW6 identified the signature of the 1st accused in Ext.P25. In Ext.P7(b) Treasury Bill Book the details of Ext.P25 is incorporated. PW1 had deposed that the entries in the cash book [Ext. P15(b)] were in the hand writing of the 1st accused and she identified the initial and signature of the 1 st accused and the 2nd accused. So it is proved that the 1st accused was entrusted ₹29,650/- by way of electricity charges. PW10 was the Assistant Executive Engineer, Electrical Major Section. He had further deposed that, he had issued Ext.P31 letter after perusing and verifying the registers. As per Ext.P31, the electricity charges from April 1996-April 1997 to the tune of ₹1,64,175/- (Rupees one lakh sixty four thousand one hundred and seventy five only) is lying as dues towards electricity dues. So it is proved that the aforesaid amounts which were entrusted with the 1st accused were not utilized for the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 41 purpose for which it was entrusted for the period from April 1996 to April 1997 was not paid by the 1 st accused, which was collected by her by way of 8 contingent bills. As per circular No.21/76 of Kerala Police it is evident that the cash book shall be maintained by the cashier.
24. An amount of ₹54,700/- by means of money memo was falsely entered in Ext.P3 cash book at Folio No.82 (Ext.P3(e)). In Ext.P3(e), in the payments column, money memo No. 337/96-97 is noted, wherein the unit to which the said amount was disbursed is kept blank. PW17 identified the initials and hand writings of the 1st accused in Ext.P3(e). Since the name of the unit is not mentioned in Ext.P3(e), wireless was sent to all the units, to ascertain whether the particular money was received in any of the units. PW20 had deposed that he had furnished Ext.P43 series messages before the Investigating Officer. In Ext. P43 series, it is noted that no amount was received in any of the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 42 units. Ext.P43 series contain the reply messages sent by all the units under the Telecommunication Headquarters which would go to show that the money memo was not received in any of the units. It is evident that the amount of ₹57,400/- was entrusted with the 1st accused and the same was misappropriated by her. So a total sum of ₹84,350/- (Rupees eighty four thousand three hundred and fifty only) ( ₹29,650+ ₹54,700=₹84,350/-) was misappropriated by the 1st accused.
25. Similarly, coming to the evidence available in C.C.No.24/2005, the following are relevant. Money Memo No.374/96-97 is for an amount ₹13,508/-. PW1 had deposed that Ext.P3 is the Cash Book for the year 1996- 1997 and Ext.P3(d) is the Folio No.88 dated 31.7.1996. Ext.P3(d) goes to show that by way of money memo an amount of ₹13,508/- was disbursed to the SP Telecommunication, Idduki. Ext.P35 is the Cash Book of the Telecommunication Idukki Unit. Ext.P35(a) is page No.79 of 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 43 Ext.P35 cash book. PW14, Inspector of Police Telecommunication, Idukki Unit deposed that as per Ext.P35 (a) an amount of ₹3,508/- alone was disbursed to Idukki Unit. Ext.P36 is the Money Memo receipt which is the duplicate portion received at Idukki Unit. As per Ext.P36 Money Memo, the amount received at Idukki Unit was ₹3,508/. So it is evident that out of the amount of ₹13,508/- the 1st accused had misappropriated an amount of ₹10,000/- and she had also falsified and manipulated the records by making the aforesaid entry. Money Memo No.383/96-97 is for an amount of ₹3,108/-.
26. Ext.P3 is the cask book proved through PW1. Ext.P3(f) is the Folio 91 of Ext.P3. Ext.P3(f) shows disbursement of ₹3,108/- to the Telecommunication Kottayam Unit by the 1st accused. PW17 had identified the hand writings and initials of the 1 st accused in Ext.P3(f). PW11 had furnished Ext. P33 Cash Book of Kottayam Unit.
2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 44 In Ext.P33 Cash Book, no amount was seen received as mentioned in Ext.P3(f). So it is evident the that the 1 st accused had misappropriated ₹3,108/-.
27. Ext.P4 is the Cash Book maintained in SP Telecommunication, Head Quarters Thiruvananthapuram. Ext.P4(b) is Folio No.86 of Ext.P4. In Ext.P4(b) as sub voucher No.791 money memo No.781/96-97 was mentioned. It shows disbursement of ₹41,870/- to the Kozhikode Unit. PW7 had identified the hand writing and signature of the 1st accused in Ext.P4(b). Ext.P50 is the Cash Book of Kozhikkode Unit which had been produced by CW7 who is no more, therefore this was marked through the Investigating Officer. In Ext.P50 Cash Book of Kozhikode Unit, no amount as mentioned in Ext.P4(b) was seen received. So it is proved that the 1 st accused had misappropriated ₹41,870/-. Thus the 1st accused had misappropriated a total sum of ₹54,978/- (₹10,000/-+ 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 45 ₹3,108+₹41,871=₹54,978/-).
28. With regard to the evidence available in C.C. No. 25/2005, the following aspects are relevant. Ext.P15 is the Cash Book in the office of the SP Telecommunication Head Quarters, Thiruvananthapuram. Ext.P15(i) is the Folio No.8 and as per the sub voucher No.33 money memo No.28/97- 98 for an amount of ₹33,011/- was shown. The name of unit to which it was sent was missing in Ext.P15(i). PW43 series wireless messages produced by PW20 show that though message was sent to all the units it was found that no such amount was received in any of the units. PW17 had identified the hand writing and initials of the 1 st accused in Ext.P15(i) endorsement. So it is proved that the 1st accused has misappropriated an amount of ₹33,011/- (Rupees thirty three thousand and eleven only).
29. PW2, the Junior Superintendent, office of the SP Telecommunication, Head Quarters, deposed that Ext.P16 is 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 46 the money memo book in which the counterfoils were kept in order according to the serial numbers. PW2 had deposed that money memo Nos. 104/97-98 and 105/97-98 were seen torn and removed. PW2 added that after the torn page, the number '105' was seen corrected as '107'. Ext.P16
(a) is money memo No.104/97-98. Ext.P16(b) is money memo No.108/97-98 with the over writing on the figure '8.' PW2 had identified the signature of the 1st accused in Ext.P16(a) and (b). On a perusal of Ext.P18(a) and P18(b) it is found that the said statement is correct. Ext.P16(a) Money Memo No.104/97-98 is shown as the amount sent to Inspector of Police Telecommunication Wayanad. Ext.P16(b) Money Memo No.105/97-98 is shown as the amount sent to Kollam Unit. In receipt No.'105' was seen corrected as '107'. In between money memo 104 and Ext.P16(a) the remnants of two sheets torn and removed were found. Ext.P15 is the Cash Book of the office of the SP, 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 47 Telecommunication, Headquarters and Ext. P15(d) is folio No.24 of Ext.P15. As sub voucher Nos.124 and 125 and money memo No.105/1997-1998 and 106/97-98 were noted. The name of the units to which the payment was effected were seen erased. PW2 had deposed that in Ext.P15(d) against erasers the 1st accused had subscribed her initials and the same was authenticated by the second accused writing "verified arithmetical accuracy and found correct". PW2 further stated that in page No. 25 of Ext.P15, ie, Ext.P15(e) the money memo 107 and 108 were seen corrected. PW2 had identified the hand writing of the 1 st accused in Ext.P15(d) and (e). PW13 stated that as mentioned in Ext.P16(a), an amount of ₹11,515/- was received in his office. The same is not the amount covered by money memo No.105/97-98. He further stated that the Money Memo number was seen corrected in P15(d) and (e) and in Ext.P15(d) the unit portion was seen erased. PW20 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 48 produced Ext.P40 series wireless messages to show that no amount was received in any of the units under the Head Quarters. So it is evident that the entries in Ext.P15 cash book were erased by the 1st accused and misappropriated the amounts as per money memo No.105/97-98 (₹10,348/-) and money memo No.106/97-98 (₹14,149).
30. Ext.P15 is the Cash Book in the office of the Telecommunication Head Quarters. Ext.P15(c) is Folio No.49 dated 24.6.1997. As per entry No.1 (Sub voucher No.234) by money memo No.208/97-98 an amount of ₹29,650/- was shown in the payment column. The name of the unit was seen erased. Ext.P27 is the money memo book from 11.6.1997 to 15.6.1997. Ext.P17(b), it is seen that money memo No.208/97-98 is torn off. After money memo No.207/97-98, the money memo shown is 209/97-98. In between them the remnants of torn pieces of the money memo were found. PW11, Additional Sub Inspector 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 49 Telecommunication, Kollam Unit, deposed that Ext.D3 is the Teleprinter messages sent from his office to accused No.2. In Ext. D3 it is mentioned that money memo No.208/97-98 was not received in his office. PW 8 who was the U.D.Clerk in the office of the 1st accused deposed that in Ext.P17 money memo book, after money memo book No.207, money memo No.208 was missing and the remnants of the same were found in between the money memo No.207 and 209. PW20 produced Ext.P13 series money memos which go to show that no amount was received in any of the units. So it is proved that correction was made in the cash book by erasing the name of the units and one page ie; money memo No.208/97-98, was torn off from Ext.P17 money memo book and the 1st accused was having dominion over an amount of ₹29,680/- and she had misappropriated the same. Thus the 1st accused had misappropriated a total sum of ₹87,158/- (Rupees eighty seven thousand one hundred 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 50 and fifty eight only) (₹33,011/- + ₹14,159/- + ₹10,348 + ₹29,650/-).
31. The Special Court considered the element of conspiracy and relied on Circular No.21/76 of the Kerala Police, which would show the duties of the cashier. In the judgment of the Special Court, the learned Special Judge observed as under:
"Regarding the Government cash, it is the duties and functions of the Cashier to maintain the cash book TR7A, money memo book KPF 105 and connected records etc. It is pointed out by the learned Legal Adviser that in all the cash books, the second accused singed the same by stating "verified arithmetical Accuracy and found correct". It is submitted by the learned Legal Adviser that since the second accused was fully aware of the malpractice, willfully he attested the same by using the aforesaid words. But the Kerala Treasury Code Rule 92(a)(iii), it is provided that the Head of the Office should verify the totalling of the cash book or have it verified by a responsible subordinate other than the writer 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 51 of the cash book and initial it as correct. So, it is evident that he need only verifying the totaling of the cash book and no other matters. Like wise in Circular No.21/76 of Kerala Police, it is noted that the cash book shall be he maintained by the Cashier. Hence the aforesaid contention cannot be accepted. Apart from all these, there is overwhelming circumstances in this case to show that the second accused was vigilant in bringing forth the misappropriation before the authorities. The first accused was suspended on 26.5.1997 as evidenced by Ext.D6. It is deposed by PW1 and PW3 that a four member Board was constituted with PW3, the second accused and two others. The Board had filed a report stating that all the records were not surrendered by the accused. Thereafter, Ext. D8 report was submitted by the second accused to the Superintendent of Police, Telecommunication on 8.7.1997 describing the errors in the cash book, money memo etc. Then it was the second accused who sent TP message to all the Units enquiring as to the receipt of the amount covered by money memo No.208/97-98. He collected the information as per Ext.D3. It was found by the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 52 second accused that some documents were taken away by the first accused and he submitted Ext.P37 report to S.P. Telecommunication on 13.8.1997 alleging theft of documents by the first accused. The said report submitted by the second accused, ie. Ext. P37, was forwarded to the Medical College Police Station, Thiruvananthapuram as per Ext.P38 resulting in registering of crime 97/97 of Medical college Police Station. It is admitted by PW25, the Investigating Officer, that the second accused was treated as a witness and he was questioned and his statement under S.161 Cr.P.C. was recorded by the Medical College Police, by the Assistant Commissioner, Crime Detachment and Ext.D9 message was sent to the second accused by PW25 to appear before him treating as an important witness. So the aforesaid circumstances itself is sufficient to draw a conclusion that the second accused at no point of time conspired with the first accused in commission of the said offence. Thus the prosecution failed to prove that the second accused had conspired with the first accused for misappropriating the amounts covered by 8 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 53 contingent bills covered by C.C.21/2005, 22/2005 and first head of C.C.23/2005. On the other hand, the prosecution has succeeded in proving that the aforesaid amounts were entrusted with the first accused in her capacity as the Cashier of the office of the S.P. Telecommunication Head quarters, Pattom, Thiruvananthapuram, and she was having dominion over the said amount and she misappropriated the same and committed criminal breach of trust with respect to the said amounts."
32. On reading the observation of the learned Special Judge, as extracted hereinabove, it is seen that the allegation of hatching conspiracy with the 1st accused and second accused was found against by the Special Court, while holding that the prosecution had succeeded in proving the misappropriation committed by the 1 st accused in her capacity as the cashier of the Office of the SP, Telecommunication, Headquarters, Pattom Thiruvananthapuram and she got dominion over the amounts 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 54 found to be misappropriated.
33. The ingredients of the offence under Section 409 of the IPC are to be considered. Section 409 of IPC reads as under:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent:
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
34. Section 409 is pari materia to Section 316(5) of the Bharatiya Nyaya Sanhita, 2023 (`BNS' for short) and Section 316(5) of BNS reads as under:
"316(5): Criminal breach of trust:
Whoever, being in any manner entrusted with 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 55 property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
35. Analysing the ingredients to attract offence under Section 409 of IPC, its applicability is as held by the Apex Court in [(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v. State of Andhra Pradesh, as pointed out by the learned senior counsel for the petitioner.
36. In Sadhupati Nageswara Rao v. State of Andhra Pradesh's case (supra), the Apex Court, while upholding the conviction held that, where the 1st accused, an agent entrusted with the distribution of the rice under the "Food for Work Scheme" to the workers on production of coupons, was charged with misappropriation of 67.65 quintals of rice, the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 56 evidence proves that there was entrustment of property to the accused.
37. In order to sustain a conviction under section 409 of the IPC, two ingredients are to be proved; namely,
(i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and
(ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC.
The basic requirements to bring home the accusation under Section 405 IPC are to prove conjointly; (i) entrustment and
(ii) whether the accused was actuated by a dishonest intention or not, misappropriated it or converted it to his own use or to the detriment of the persons who entrusted it, as held by the Apex Court in the decision reported in Sadhupati Nageswara Ra v. State of Andhra Pradesh's case (supra).
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38. The gravamen of the offence under Section 409 of IPC is dishonest intention on the part of the accused but to establish the dishonest intention, it is not necessary that the prosecution should establish an intention to retain permanently, the property misappropriated. An intention, wrongfully to deprive the owner of the use of the property for a time and to secure the use of that property for his own benefit for a time would be sufficient. Section 409 of IPC cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed, is ipso facto, guilty of criminal breach of trust; but something more than that is required to bring home the dishonest intention.
39. Tracing the ingredients of the offence punishable under Section 477A of IPC, Section 477A provides as under:
"Section 477A - Falsification of Accounts :
"Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 58 or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
40. Section 344 of BNS is corresponding to Section 477A of IPC. The same reads as under:
"344. Falsification of accounts:- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 59 has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
41. The three ingredients to prove the offences are:
(i) That at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity ;
(ii) That he should destroy, alter, mutilate or falsify any book, electronic record, paper, writing, valuable security or account, which belongs to or was in the possession of his employer and
(iii) The act should have been done willfully and with an intention to defraud. To convict a person under section 477A of the IPC, the prosecution has to prove that there was a willful act, which had been made with an intent to defraud and while proving 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 60 "Intention to defraud", the prosecution has to further prove the two elements that the act was an act of deceit and it had caused an injury. In the present case, there may be an injury, but there is no deceit.
42. For the offence under Section 477A of IPC, what has got to be proved is twofold viz., that the person who commits the offence is a clerk, officer or servant, and secondly, that there was intent to defraud. It is sufficient, to satisfy the words of the section, to prove that the person charged under this section is one who undertakes to perform and does perform the duties of a clerk or servant whether in fact he is a clerk or servant or not, and though he is under no obligation to perform such duties and receives no remuneration. The emphasis is upon the words "in the capacity of a clerk, officer or servant".
43. To attract Section 477A, the-employee concerned must destroy, alter, mutilate or falsify book or accounts etc, of 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 61 the employer, inter alia, with intent to defraud. The term "intend to defraud" has already been explained in Section 25 of IPC. It contains two elements, viz., deceit and injury. A person is said to deceive another when by practising suggestio falsi or suppressio veri or both, he intentionally induces another to believe a thing to be true. "Injury" defined in Section 44 of IPC means any harm whatever illegally caused to any person in body, mind, reputation and property. In the decision reported in [1976 CrLJ 913 (SC) : 1976 Cr LR (SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman Singh v. Delhi Administration, the Apex Court held that whenever the words "fraud" or "intent to defraud" or "fraudulently" occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, firstly, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 62 injury to a risk of possible injury by means of that deceit or secrecy. Where the accused prepared a false travelling allowance bill, presented it to a sub-treasury and withdrew the amount, it meant securing an advantage by deceitful act and causing corresponding loss to the State. The offence will fall under section 477A and the fact that the accused subsequently paid over the entire amount is not a matter to be considered.
44. Here, the learned senior counsel for the 1st accused raised contention regarding the non-availability of GD entries showing the receipt of money alleged to have been misappropriated by the 1st accused and the same was pointed out as a serious anomaly to disbelieve the prosecution case. Similarly, the learned senior counsel for the 1st accused raised the challenge regarding the lack of clarity in respect of the TP wireless messages. In fact, these challenges have no locus standi in the instant case, as the 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 63 prosecution has succeeded in proving entrustment of the money alleged to have been misappropriated by the 1 st accused and it is the duty of the 1 st accused to explain how the amount was spent and the said duty is not that of the prosecution. If so, this contention cannot be countenanced. Thus, on an evaluation of the entire evidence, there is no reason to find any illegality in the conviction entered by the Special Court, holding that the 1st accused committed offences punishable under Section 409 of the IPC and under Section 13(2) r/w 13(1)(c) of the PC Act, 1988 in C.C.Nos.21/2005, 22/2005 and 23/2005. Similarly, the conviction entered into by the Special Court in C.C.Nos.24/2005 and 25/2005 finding commission of offences punishable under Sections 409, 201 as well as under Section 477A of IPC and for the offence punishable under Section 13(1)(c) r/w.13(2) of the PC Act, 1988 also are liable to be confirmed.
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45. Coming to the sentence, the learned senior counsel argued for imposition of minimum sentence to avoid prolonged detention of the accused in custody. On perusal of the sentence imposed, in all these cases, the 1 st accused was convicted for rigorous imprisonment for a period of two years and by imposing separate fines. Similarly, for the offences punishable under Section 409 of IPC also, rigorous imprisonment for a period of two years and different fines were imposed as extracted hereinabove. It is true that, as on the date of commission of offence, the minimum sentence punishable under Section 13(1)(c) r/w 13(2) of the PC Act,1988 is one year. Coming to Section 409 of IPC, the punishment provided is imprisonment for life (with effect from 01.01.1956), or with imprisonment of either description for a term which may extend to ten years, and shall also liable to fine. When considering the severe punishment provided under Section 409 of IPC, two years imprisonment imposed 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 65 by the Special Court could not be found as exorbitant. However, having noticed the facts and circumstances of the case, in consideration of the arguments mooted by the learned senior counsel for the 1 st accused, the sentence imposed for the offence under Section 409 of IPC in all the cases can be reduced to rigorous imprisonment for a period of 18 months instead of two years after confirming the sentence of fine imposed in all the cases and the default fine imposed for the same as such. Regarding the offences punishable under Section 13(1)(c) r/w 13(2) of the PC Act, 1988 in all the cases, the 1 st accused is sentenced to undergo rigorous imprisonment for a period of one year. As far as the fine imposed by the Special Court is concerned, the same is confirmed including the sentence of default imprisonment.
In the result, these appeals stand allowed in part as indicated hereinabove by confirming the conviction and 2026:KER:19595 CRL.A.NOS.1353, 1382, 1383 1389 & 1391 OF 2009 66 modifying the sentence.
The substantive sentence shall run concurrently and the default sentence shall run separately in each cases.
The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the trial court forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Special Court, forthwith for information and compliance.
Sd/-
A. BADHARUDEEN, JUDGE nkr