Kerala High Court
C.S.Madhusoodhanan vs State Of Kerala on 31 July, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934
CRL.A.No. 1032 of 2012 ()
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CC.153/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
DATED 31-07-2012
APPELLANT(S)/ACCUSED:
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C.S.MADHUSOODHANAN, ALIAS MADHU, AGED 51 YEARS
S/O.SOMASUNDARAN PILLAI
CASHIER AND SENIOR ASSISTANT
K.S.E.B. ELECTRICAL DIVISION OFFICE,
PONKUNNAM.
BY ADVS.SRI.P.N.SUKUMARAN
SRI.BIJU SUKUMARAN
SRI.P.S.APPU
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
REP. BY THE DY.S.P, VACB, EASTERN RANGE
KOTTAYM,
WHO IS REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM
BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2013,
ALONG WITH CRA. 1033/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.Nos.1032 and 1033 of 2012
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Dated this the 18th day of March, 2013.
J U D G M E N T
As the above two appeals are arising out of a common judgment dated 31.7.2012 in C.C.Nos.153 of 2008 and 154 of 2008 of the court of Enquiry Commissioner and Special Judge, Kottayam, and as the parties to both the appeals are one and the same, and the facts and circumstances involved and the evidence and materials produced are more or less the same, except with respect to the period of the alleged offences, these appeals are being heard together and being disposed by this common judgment.
2. The case of the prosecution in both cases is that, while the appellant was working as the Cashier and Senior Assistant in the Kerala State Electricity Board, Electrical Divisional Office, Ponkunnam, he had committed the 2 Crl.A.Nos.1032 and 1033 of 2012 offences punishable under sections 13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988 and for the offences under sections 409, 465, 471 and 477 A of IPC. The only difference among the above two cases is with respect to the period of offences allegedly committed by the appellant/ accused. When the accused appeared, a formal charge was framed against him in each case for the above offences, which when read over and explained to the accused, he pleaded not guilty and denied the same and therefore the trial was continued, during which Pws.1 to 15 were examined and Exts.P1 to P77 documents were marked and in addition to that, documents X1 to X10 were also produced and marked through PW1. After examining the accused under section 313(1)(b) of Cr.P.C., and at the time of the defence evidence, DW1 was examined and Ext.D3 was marked through him. Besides the above, Exts.D1, D2 and D4 were also marked from his side. In each case, after considering the rival contentions and the evidence on 3 Crl.A.Nos.1032 and 1033 of 2012 record, the trial court has framed appropriate issues and finally found that the accused has committed the offences charged against him. Accordingly he is convicted thereunder and on such conviction, in C.C.No.153 of 2008, the appellant/accused is sentenced to suffer rigorous imprisonment for 2 years and to pay fine of `40,000/- and in default of payment of fine, directed him to undergo additional simple imprisonment for a period of 6 months, and in C.C.No.154 of 2008, the appellant/accused is sentenced to suffer rigorous imprisonment for 2 years and to pay fine of `70,000/- and in default of payment of fine, he is directed to undergo additional simple imprisonment for a period of one year. Similarly, for the offences under section 409, he is sentenced to undergo rigorous imprisonment for 2 years and to pay fine of `10,000/- and in default he is directed to undergo simple imprisonment for 3 months, in each case. For the offences under sections 465, 471 and 477 (A) of IPC, the accused is sentenced to undergo 4 Crl.A.Nos.1032 and 1033 of 2012 rigorous imprisonment for one year each, in each case. It is also ordered to run the substantive sentences concurrently in each case. It is the above finding and order of conviction and sentence that are challenged in these appeals.
3. I have heard Adv.Sri.P.N.Sukumaran learned counsel for the appellant and the learned Public Prosecutor.
4. Learned counsel for the appellant among other several contentions, after taking me through the deposition of PW1, vehemently submitted that the trial court has not offered a fair trial to the accused and because of the illegal, improper and irregular approach made by the trial court in the matter of trial, particularly the manner in which the documentary evidence was introduced, the appellant was prejudiced very much and as such, according to the learned counsel for the appellant, there is no legally acceptable evidence to support the findings of the court below and the sentence imposed on him, and therefore the appellant in each case is entitled to get an acquittal, especially in the 5 Crl.A.Nos.1032 and 1033 of 2012 light of the decision of the Honourable Apex Court in the decision reported in CBI, New Delhi, Vs. Mohinder Singh (2004(13) SCC 578).
5. On the other hand, learned Public Prosecutor submitted that the documents which are objected by the defence in producing as evidence, were with the disciplinary authority, before whom the accused was facing disciplinary proceedings and therefore the original of those documents could not be produced and therefore there was nothing improper or illegal in producing the photostat copies of the documents by the prosecution or anything illegal in producing X1 to X10 by PW1.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the deposition of PW1.
7. In the light of the seriousness of the contentions raised by the learned counsel for the appellant, especially in 6 Crl.A.Nos.1032 and 1033 of 2012 the light of the judgment of the Honourable Apex Court cited supra and especially when there is no contra arguments from the side of the learned Public Prosecutor and as he is not disputing the fact that Exts.P1 to P6 and P8, ie., the main documents produced by the prosecution, are only photostat copies and particularly when X1 to X10 are not produced by the prosecution but produced by PW1 and that too only at the time of his chief examination. In this juncture it is pertinent to note that the main allegation against the appellant/accused is that, during the alleged period, he had committed forgery of documents and used forged documents as genuine one and committed falsification of accounts. Without producing the original of those documents and forged documents, how the prosecution can succeed and how the accused can effectively defence the case. As far as X1 to X10 documents are concerned, which are relied on and referred to by the learned Judge in support of his finding, are not produced 7 Crl.A.Nos.1032 and 1033 of 2012 along with the report and are not produced by the prosecution agency but it has been produced by PW1 and that too in the manner unheard to criminal trial and procedure, without giving any previous opportunity to go through those documents and thereby denying proper opportunity to cross examine PW1 and to challenge the contents of those documents. Hence, according to me, it can be safely concluded that there is no fair and proper trial. Therefore, the conviction recorded and the sentence imposed on the appellant are not sustainable on that count alone. In the above circumstances, according to me, without going into the merits of the other contentions advanced by the learned counsel for the appellant and the case of the prosecution, these appeals can be disposed of remanding the matter to the trial court for fresh disposal. At the time of fresh consideration and disposal of the case, as suggested by the learned Public Prosecutor, both the prosecution as well as the defence can be given 8 Crl.A.Nos.1032 and 1033 of 2012 opportunities to adduce fresh evidence, including the evidence of the originals of the photostat of the evidence produced by the prosecution as well as the original of X1 and the contra evidence to it.
In the result, Crl.A.Nos.1032 of 2012 and 1033 of 2012 are disposed of setting aside the judgment dated 31.7.2012 in C.C.Nos.153 of 2008 and 154 of 2008 of the court of Enquiry Commissioner and Special Judge, Kottayam, and remanded the matter back to the trial court for fresh disposal, after affording an opportunity to adduce fresh evidence for both the prosecution as well as the defence and also an opportunity of being heard.
Criminal appeals are disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge