Kerala High Court
V.C.Kuriakose S/O. Chacko vs State Of Kerala on 31 May, 2016
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938
CRL.A.No. 2219 of 2005 ( )
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CC 22/2000 of ENQUIRY COMMISSIONER & SPL.JUDGE,
KOZHIKODE
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APPELLANT(S)/ACCUSED:
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V.C.KURIAKOSE S/O. CHACKO,
VALIAVEETTIL HOUSE,IRATTUPETTA,
POONHAR,, KOTTAYAM DISTRICT.
BY ADVS.SRI.ALAN PAPALI
SRI.SOJAN MICHEAL
SRI.GILBERT GEORGE CORREYA
SRI.NISHIL.P.S.
SRI.J.VIMAL
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 19/2/2016, THE COURT ON 31-05-2016 ALONG WITH
CRL.A.2214/2005,DELIVERED THE FOLLOWING:
bp
P.UBAID, J.
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Crl.A Nos.2214 and 2219 of 2005
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Dated this the 31st May, 2016
O R D E R
The appellant is the same in these two appeals. He faced prosecution on three final reports before the learned Enquiry Commissioner and Special Judge (Vigilance), Kozhikode filed by the Vigilance and Anti-Corruption Bureau, (VACB), Kannur in Crime No.V.C 3/96. The appellant retired from service as the Assistant Director of Agriculture. While working as Assistant Director of Agriculture, Peravoor, a complaint came against him that a huge amount was misappropriated by him from public funds on different occasions. The first complaint came on 31.10.1995, from the then Principal Agricultural Officer that the accused had absconded with an amount of 2,53,102/- withdrawn from the bank accounts, meant for public purposes. No crime was registered on the said complaint by the police. Later, another complaint came from the Principal Agricultural Officer on 22.11.1995 containing allegations of misappropriation of 2,53,102/-. Crl.A Nos.2214 and 2219 of 2005 2 On the said complaint, the VACB registered a crime as Crime No.3/1996 and proceeded for investigation. After investigation, the VACB submitted three final reports relating to different periods of misappropriation. On three final reports, the trial court took cognizance as C.C Nos.22/2000, 23/2000 and 24/2000. On the application of the accused, the three cases were tried jointly by the trial court, and common evidence was recorded.
2. In C.C 22/2000, the prosecution case is that, the accused dishonestly misappropriated an amount of 2,53,102/- on 21.10.1995, the prosecution case in C.C 23 of 2000 is that the accused dishonestly misappropriated a total amount of 6,03,403/- during the period from 30.7.1994 to 31.3.1995, and in C.C 24 of 2000, the prosecution allegation is that during the period from 2.4.1994 to 14.3.1995, the accused dishonestly misappropriated an amount of 7,83,585/- from public funds, misusing his official position as Assistant Director of Agriculture. In all the three cases, the trial court framed charge against him under Section 13 (2) read with 13 (1) (c ) Crl.A Nos.2214 and 2219 of 2005 3 of the Prevention of Corruption Act, ( "the P.C Act for short) and under Section 409 of Indian Penal Code, to which the accused pleaded not guilty. The prosecution adduced evidence in the three cases as part of joint trial ordered by the court. Accordingly, PW1 to PW25 were examined and Exts. P1 to P97 were marked. When examined under Section 313 Cr.P.C, the accused maintained a defence, that as regards the allegation in C.C 22/2000, the real fact is that he in fact lost the money in transit while coming to the office by bus and he happened to vanish from the locality without making any complaint when he was put in utter dismay due to the loss of the huge amount. As regards the allegation in other cases, the defence is that he had not in fact misappropriated any amount from public funds, that he had properly and promptly accounted the money withdrawn by him from the bank, and that he could not prove his innocence only because the material documents proving such accounting were destroyed in an incident of fire that took place at the office at the instance of some miscreants. In defence, the accused examined his own brother as DW1. Crl.A Nos.2214 and 2219 of 2005 4
3. On an appreciation of the evidence adduced by the prosecution and the evidence adduced by the defence witness, the trial court found the accused not guilty in C.C 24/2000. The finding therein is that the prosecution does not have any material to prove that the accused had in any manner misappropriated the amount withdrawn from the bank. But in C.C 22/2000 and 23/2000, the trial court found the accused guilty. As regards the defence pleaded by the accused, in C.C 22/2000, the trial court found that there is no satisfactory material to probabilise the story of loss of amount in transit pleaded by the accused, and as regards the defence pleaded in C.C 23/2000, the trial court found that it is not satisfactorily proved that the relevant documents proving accounting were in fact destroyed in the incident of fire that took place in the office. Accordingly, the trial court convicted the accused in C.C22/2000 and 23/2000 under Section 13 (2) read with 13 (1) ) of the P.C Act and also under Section 409 I.P.C. On conviction, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 20,000/- under Section 13(2) read with Crl.A Nos.2214 and 2219 of 2005 5 Section 13 (1)(c) of the P.C Act and to undergo another term of rigorous imprisonment for two years, and to pay a fine of 20,000/- under Section 409 I.P.C. In C.C 22/2000. On conviction in C.C 23/2000, he was sentenced to undergo rigorous imprisonment for three years each, and to pay a fine of 65,000/- each under Sections 13 (2) read with Section 13 (1) (c) of the P.C Act and under Section 409 I.P.C. The substantive sentences under the two sections in each case were directed to run concurrently. So also, giving the benefit of Section 427 Cr.P.C, the substantive sentences in two cases were directed to run concurrently. Thus, practically the substantive sentence will be only rigorous imprisonment for three years besides the fine sentence imposed in the two cases. Aggrieved by the judgment of conviction dated 30.11.2005, the accused has come up in appeal. Crl.A No.2219/2005 is the appeal against the conviction and sentence in C.C 22/2000 and Crl.A No.2214/2005 is the appeal against the conviction and sentence in C.C 23/2000. In C.C 24/2000 tried along with the two other cases, the appellant stands acquitted, on the Crl.A Nos.2214 and 2219 of 2005 6 finding that there is absolutely no evidence to prove the allegation of dishonest misappropriation therein.
4. When these appeals came up for hearing, the learned counsel for the appellant submitted that the appellant is entitled for acquittal on factual as well as legal grounds. As regards the factual aspects, the learned counsel submitted that the whole prosecution is really doubtful, and that the V.A.C.B brought prosecution against the appellant without any basis despite the fact that the Investigating Agency was well convinced that the accused had not in fact misappropriated any amount, and that the material documents proving accounting were in fact lost in a fire that took place in the office. As regards the plea for acquittal on legal aspects, the learned counsel submitted that Ext.P88 prosecution sanction granted by the Principal Secretary to the Government under Section 19 of the P.C Act stands not properly and legally proved, and so in the absence of such proof, the whole prosecution will have to be treated as barred under Section 19 of the P.C Act. On the other hand, the learned Public Prosecutor submitted that the Crl.A Nos.2214 and 2219 of 2005 7 accused had practically admitted loss of public money from his hands, and that the defence pleaded by the accused is quite improbable. As regards the legal question raised by the accused, the learned Public Prosecutor submitted that the prosecution sanction stands proved by the Under Secretary to the Government.
5. Before going to the legal aspects as regards the prosecution sanction, let me see whether the prosecution case stands properly and legally proved beyond reasonable doubt, and whether the defence pleaded by the accused is to any extent acceptable.
6. It is pertinent to note that no crime was registered by the V.A.CB in this case on the first complaint made by the Principal Agricultural Officer on 31.10.1995. In Ext.P45 complaint, and also in Ext.P47 (c) complaint, the allegation is that an amount of 2,53,102/- was dishonestly misappropriated by the accused. This is exactly the allegation in C.C 22/2000. Ext.P47 (c) is the first complaint in this case, made on 31.10.1995. The Ext.P45 complaint was made by the very same complainant (Principal Crl.A Nos.2214 and 2219 of 2005 8 Agricultural Officer on 22.11.1995). The alleged criminal misappropriation in C.C 22/2000 was on 21.10.1995. The prosecution allegation therein is that on 21.10.1995, the accused withdrew an amount of 2,53,102/- from two banks, and without accounting it anywhere, or without remitting the said amount in Treasury, the accused misappropriated the said amount dishonestly. This is exactly the allegation in the two complaints. The prosecution allegations in C.C 23/2000 and C.C 24/2000 do not find a place in the two complaints.
7. It has come out in evidence that the Principal Agricultural Officer made complaint against the accused on the basis of an audit report. Ext.P38 is the first audit report which is only provisional. Being only a provisional audit report, no value can be attached to this document. Ext.P64 is the final audit report, but the person who prepared the said report died pending the proceeding. This audit report is not seen proved by any of the members of the audit party. The prosecution is definite that the whole prosecution case, and also the complaint in this case is based on the Ext.P64 Crl.A Nos.2214 and 2219 of 2005 9 audit report. The prosecution obtained the necessary figures proving misappropriation from Ext.P64 audit report. When the said audit report stands not properly and legally proved, no value can be attached to the Ext.P45 complaint or the other Ext.P47(c )complaint, based on the said audit report. Anyway, it is very material that the complaint; whether it is Ext.P45 complaint or the Ext.P47 (c), contains only an allegation of dishonest misappropriation of 2,53,102/-. In the other two cases, the prosecution allegation is that huge amount was misappropriated dishonestly by the accused. The amount involved in C.C 23/2000 is 6,03,403/-, and the amount involved in C.C 24/2000 is 7,83,585/-. Thus, the total amount involved in these two cases comes to nearly 14 lakhs. It is pertinent to note that when the prosecution allegation in C.C 23/2000 is that the accused misappropriated 6,03,,403/-. The finding of the trial court is that the accused had misappropriated only 1,37,178/-. Thus, the thing is practically that the prosecution miserably failed to prove the criminal dishonest misappropriation alleged in C.C 24/2000. It is here the Crl.A Nos.2214 and 2219 of 2005 10 defence raised by the accused assumes importance that he had properly and promptly accounted the amount withdrawn by him.
8. As regards the allegations in C.C 22/2000, the appellant does not have any dispute on factual aspects. It stands proved by Ext.P48 and 48 (a) documents that the accused had withdrawn an amount of 13,402.65 from the Kolayad Service Co-operative Bank on 21.10.1995 and this withdrawal is proved by Ext.P51 voucher and also by Ext.P52 documents. Ext.P60 is the cheque by which an amount of 2,39,700/- was withdrawn by the accused from the Peravoor Co-operative Urban Bank. This withdrawal is proved by Ext.P61 and 61(a) documents. Thus, the withdrawal of a total amount of 2,53 102.65 is well proved by documents. This amount withdrawn by the accused on 21.10.1995 was not accounted or entered in any register by the accused. This is the evidence given by the material witnesses examined as PW3 and PW6. Of course, as regards these aspects, the defence has no dispute. The accused has no case that he had accounted this amount or Crl.A Nos.2214 and 2219 of 2005 11 had entered withdrawal in any material register. The defence case is that the total amount withdrawn by the accused was kept by him in his hands and the amount could not be remitted in the treasury due to the succeeding holidays. When he was coming to the office on 24.10.1995, he lost the money in transit. In view of this defence pleaded by the accused, the accused would admit that he had not in fact accounted the money or had not remitted the amount in the Treasury. Thus it stands well proved that the amount withdrawn by the accused on 21.10.1995 was not in fact remitted by him in the Treasury on the next day. However, the amount was later remitted by him in the Treasury in the name of the Agricultural Officer by way of demand draft and the amount was encashed on 26.3.1996. This also stands well proved in evidence. The prosecution would admit that an amount of 2,53,102.65, which is the amount involved in C.C22/2000, was in fact later remitted in the name of the accused. The evidence given by DW1, the brother of the accused shows that the accused went missing since 24.10.1995 and on enquiry they learnt that the Crl.A Nos.2214 and 2219 of 2005 12 accused vanished only because he lost the public money in transit, from his hands. They made money somehow and remitted the amount in the Treasury by way of demand draft. The demand draft for the amount of 2,53,102.65 is proved by DW1. The prosecution also would admit this fact including encashment of the amount on 26.3.1996 This aspect that the money was later remitted by the accused will assume importance in appreciating the defence pleaded by the accused that, he had in fact lost money in transit on 24.10.1995.
9. As discussed above, there is no dispute regarding the prosecution allegation in C.C 22/2000 that the accused had withdrawn a total amount of 2,53,102/- from public funds on 21.10.1995, and that the said amount was not remitted in the Treasury on the next day or at any time before 26.3.1996. The prosecution thus alleges dishonest criminal misappropriation. The case of the accused in defence is that the amount was not in fact misappropriated or misutilised by him, and that he could not remit the amount in the Treasury on the next working day because Crl.A Nos.2214 and 2219 of 2005 13 he lost the amount in transit while he was travelling in a bus. The defencec case is that as the two succeeding days were holidays, he could not remit the amount in the treasury on the next day, and so he took the amount to his house in safe custody. On 24.10.1995, while he was travelling in a bus, somebody took the bag containing the money, and thus he lost the amount in transit. As he was put in utter dismay due to the loss of money, and as he was not in a position to face the superior officers, he left the locality. The defence version for the failure to make any complaint is that even regarding the earlier instance of fire in the office, the accused was unnecessarily and baselessly suspected by the others and so he thought that if he made a complaint alleging loss of money nobody would believe it. By the time, a complaint happened to be made by the relatives regarding man missing. Thereafter, the accused intimated the relatives as to what really happened. When the relatives came to know of the incident, or the loss of money from the hands of the accused in transit, they made the huge amount somehow and remitted the amount by way of Crl.A Nos.2214 and 2219 of 2005 14 demand draft. This is the evidence given by DW1. His evidence is also that after the incident, the accused had developed some psychic problems due to the loss of money, and that he had undergone some treatment for about two months. True it is that the defence has not produced any definite material to prove such a treatment. However, there is reason to believe that the accused had some treatment for something wrong mentally, after 24.10.1995, and that the relatives collected huge amount and remitted it in the treasury when they came to realise that the accused had developed some psychic problems only due to the loss of the huge amount from his hands. Ext.P46 is the copy of the letter written by the accused to the superior officer on 24.10.1995 explaining what really happened. In the said letter, he has also explained why he did not make any complaint before the police. He has explained that while he was coming to the office with the amount in his hands, he lost the bag containing money in transit in the running bus, and as he was put in utter dismay due to the loss, he left the place. Though the defence does not have Crl.A Nos.2214 and 2219 of 2005 15 any definite material or document to prove the alleged treatment for psychic disorders, it is probabilised to an extent that the accused had developed some psychic problems after 24.10.1995 and that he had some treatment for about two months. Though the defence pleaded by the accused is not properly and satisfactorily proved, it is a fact that the accused had developed some psychic problems after 24.10.1995, and that his relatives including PW1 made the money somehow and remitted it by way of demand draft when they realised that huge amount was in fact lost from the hands of the accused in transit.
10. It is pertinent to note that the accused did not in any manner dispute or deny the prosecution allegations in C.C 22/2000. Though his defence is not proved to the full satisfaction of the court, there is something to indicate that the accused had developed some psychic problems, and there is reason to believe that this was due to the loss of money from his hands which shocked him and which put him in utter dismay making him unable to face his superior officers. This will have to be considered by the court in Crl.A Nos.2214 and 2219 of 2005 16 deciding whether the prosecution case of dishonest criminal misappropriation stands proved in C.C 22/2000. I find that things are to an extent doubtful. I find that it is really doubtful whether C.C 22/2000 is really a case of criminal dishonest misappropriation. The benefit of this doubt must necessarily go to the accused.
11. Let me see whether the allegations in C.C 23/2000 are well proved as claimed by the prosecution. The prosecution case is that a huge amount of 6,03,403/- was dishonestly misappropriated by the accused on different ocasions from public funds during the period from30.7.1994 to 31.3.1995, but the prosecution could not prove this much misappropriation. What is proved and what is found by the court is only misappropriation of 1,37, 178/-. Of course, withdrawal of amount on different occasions as alleged in C.C 23/2000 is well proved by documents. The defence does not have any dispute regarding these documents proving such withdrawal. The prosecution alleges that withdrawal of 1,37,178/- made by the accused was not in fact accounted anywhere or entered Crl.A Nos.2214 and 2219 of 2005 17 in the relevant registers. The defence case is that the amount was properly accounted by the accused, but the documents proving such accounting were in fact lost in an incident of fire that took place in the agricultural office. It came out during trial that during the relevant period, some miscreants had put some material documents and registers in a well at the compound of the agricultural office. Of course, those documents and registers were later recovered from the abandoned well. These documents do not contain anything showing accounting made by the accused. It also came out during trial that an incident of fire had taken place at the agricultural office during the relevant time. The prosecution would practically admit that many documents and registers were burnt in the said incident. The defence case is that the relevant documents and registers proving accounting were in fact destroyed in the said incident. The prosecution witnesses would practically admit that there was an incident of fire, wherein, so many documents and registers were burnt. The defence pleaded by the accused cannot be ignored. The accused is definite Crl.A Nos.2214 and 2219 of 2005 18 in his defence that many of the registers and documents proving the entries made by him, or proving the entires made by him were in fact destroyed in the incident of fire. Of course, it is true that this is not a definite defence.
12. As observed earlier, Ext.P45 or Ext.P47 (c ) complaint does not contain anything other than the allegation of misappropriation of 2,53,102/-. The very basic document relied on by the prosecution stands not properly proved. Ext.P64 is the audit report. Ext.P47(c) complaint was made on 31.10.1995 and Ext.45 complaint was made by the very same person on 22.11.1995. These complaints do not contain any allegation regarding the misappropriation of amount alleged by the prosecution in C.C 23/2000. It appears that the VACB brought final reports alleging misappropriation of 6,03,403/- during the period from 30.7.1994 to 31.3.1995 and misappropriation of 7,83,585/-during the period from 2.4.1994 to 14.3.1995, solely on the basis of Ext.P64 audit report. In such a situation, the prosecution is bound to prove Ext.P64 audit report as the basis of the prosecution in C.C 23/2000. The Crl.A Nos.2214 and 2219 of 2005 19 VACB has no explanation why efforts were not made to prove Ext.P64 audit report properly and legally or why no other member of the audit committee was examined to prove the report. When the prosecution alleges misappropriation of 6,03,403. the trial court found misappropriation of only 1,37,178/-. Of course, as regards withdrawal of that much amount, the defence has no dispute, subject to the contention that the withdrawal was properly accounted, but the documents proving the said accounting were destroyed in a fire incident that happened at the agricultural office. The material witnesses and also the investigating officer have practically admitted that there was such an incident of fire at the office. If so, the defence projected by the accused cannot be rejected in toto. There is something suspicious as regards the prosecution case, and there is something believable as regards the defence also. The benefit of this doubt must go to the accused. Thus the accused is given the benefit of doubt in C.C 23/2000 also.
13. Even assuming that the prosecution has a good Crl.A Nos.2214 and 2219 of 2005 20 case on facts in the two cases, the material question is whether the prosecution is barred under the law, or whether the prosecution has properly and legally proved the Ext.P88 sanction granted under Section 19 of the P.C Act. PW21 is the Under Secretary to the Government, examined by the prosecution to prove the sanction. Ext.P88 sanction was granted by the Principal Secretary to the Government. The prosecution has no explanation why the Principal Secretary was not examined to prove the sanction, or why only an Under Secretary was brought to prove the sanction. In an identical situation, a learned Single Judge of this Court held in Antony Cardoza v. State of Kerala [2011 (1) KLT 946=2011 (1) KHC 377], that the prosecution sanction granted by the Principal Secretary to the Government, and marked through the Under Secretary cannot be said to be properly proved, and that sanction will have to be proved by the person who issued the sanction order. Following the decision in Antony Cardoza, this Court later held in so many decisions including Prakash Ppai.H (Dr.)v. State of Kerala [2015 (4) KHC 557] that except in cases where the Crl.A Nos.2214 and 2219 of 2005 21 prosecution sanction can claim some immunity or sanctity under the law, the prosecution sanction granted under Section 19 of the P.C Act will have to be proved by the person who granted the sanction, or who issued the sanction order. In C.B.I v. Asok Kumar Aggarwal (AIR 2014 SC 827], the Hon'ble Supreme Court held that the sanctioning authority has to do complete and conscious scrutiny of whole record placed before it, and the sanction order should show that the authority has considered all the relevant facts and has applied its mind in the process of granting sanction. Here, Ext.P88 sanction or the evidence of PW21, does not in any manner satisfy the court that the sanctioning authority had examined all the relevant documents or records. An examination of the Ext.P88 sanction shows that what is prominently alleged in the sanction is misconduct, or violation of the rules relating to financial transactions. The sanction does not show what are the materials placed before the authority or what are the materials perused or considered by the sanctioning authority. The evidence of PW21 is quite cryptic that he is Crl.A Nos.2214 and 2219 of 2005 22 "familiar with the signature of the Principal Secretary" and that Ext.P88 is the sanction issued by the Principal Secretary. He has not stated anything regarding the materials or documents placed before the authority or the materials perused and examined by the authority, and his evidence does not show that the sanctioning authority had independently applied its mind to the facts in the process of granting sanction. Thus, I find that in view of the decision of the Hon'ble Supreme Court in C.B.I v. Asok Kumar Aggarwal, Ext.P88 sanction cannot be accepted as legal sanction. When the authority who issued the sanction order is not examined, it cannot be held that the prosecution sanction is properly and legally proved as required under the law. I find that the evidence of PW21 is worthless as regards the sanction and the prosecution has no explanation why the Principal Secretary was not examined to prove the sanction. I find that even if the Principal Secretary is examined, his evidence would not serve any purpose because the Ext.P88 sanction does not contain the necessary things as to what materials were placed before Crl.A Nos.2214 and 2219 of 2005 23 the authority, or what documents were perused or considered by the authority. There is absolutely nothing in the sanction order indicating independent application of mind by the authority. As observed, what is prominently alleged and stated in the sanction order is not criminal misappropriation, but only failure to account the amount withdrawn by the accused from public funds. Thus, I find that Ext.P88 sanction in this case is unacceptable, that it stands not properly and legally proved by the competent person, and that in the absence of evidence proving the sanction, the court will have to find that the prosecution is barred under Section 19 of the P.C Act. Thus, I find that the accused is entitled for acquittal on the legal ground that the prosecution sanction is not properly proved in the case, or that the prosecution is barred under Section 19 of the P.C Act.
In the result, these appeals are allowed. The conviction and sentence against the appellant under Section 13 (2) read with Section 13 (1) (c ) of the P.C Act and under Section 409 I.P.C made by the court below in C.C Nos.22/2000 and Crl.A Nos.2214 and 2219 of 2005 24 23/2000 will stand set aside on legal grounds, and also on the benefit of doubt. The appellant will stand acquitted of the offences in appeal under Section 386 (b) (i) of Cr.P.C. The bail bond if any, executed by him will stand discharged.
P.UBAID JUDGE ma