Kerala High Court
K.Vijayakumar vs State Of Kerala Rep. By on 18 October, 2001
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937
CRL.A.No. 1104 of 2001 (C)
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AGAINST THE ORDER IN CC 55/2000 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM
DATED 18-10-2001
APPELLANT/ACCUSED:
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K.VIJAYAKUMAR,
S/O.K.KRISHNAPANICKER,
FORMERLY EMPLOYMENT OFFICER,
TOWN EMPLOYMENT EXCHANGE,
CHERTHALA
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
RESPONDENT/COMPLAINANT:
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STATE OF KERALA REP. BY
THE DEPUTY SUPERINTENDENT OF POLICE,
VACB, ALAPPUZHA.
BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2015,
ALONG WITH CRL.A.NO.1109/2001 & OTHER CONNECTED CASES, THE COURT ON
29.1.2016 DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
..................................................
Crl.A.Nos.1104,1109,1108,
1107,1105 & 1106 of 2001
.......................................................
Dated this the 29th day of January, 2016.
"CR"
O R D E R
The sole accused in C.C.Nos.55/2000, 58/2000, 59/2000, 60/2000, 61/2000 and 62/2000 is the appellant in the above cases. The accused was charge sheeted by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Alappuzha in V.C.No.7/1996 of VACB, Alappuzha alleging offences under sections 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as 'the P.C. Act') and sections 468, 471 and 409 of the Indian Penal Code.
2. The case of the prosecution in nutshell was that the accused in the above cases was working as Junior Employment Officer, District Employment Exchange, Alappuzha during the period from 24.11.1989 to 24.6.1991 and during that period, he had misappropriated an amount of Rs.42,320/- by forging 23 vouchers showing the registration numbers and names of some persons, who were said to have registered under the Unemployment Assistance Scheme entrusted to him on 27.11.1990, 30.11.1990, 22.12.1990. 24.12.1990 and 20.2.1991, Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 2 which amount was entrusted to him for the purpose of disbursement to the beneficiaries under the scheme and he had created those documents with fraudulent intention to misappropriate the amount and thereby he had committed the above said offences.
3. As there were complaints of irregularities in the disbursement of the amount under the Unemployment Assistance Scheme effected during the period 1990-1991 in the office of Alappzuha District Employment Exchange, the District Employment Officer, PW1, was directed to conduct audit in respect of the same. He conducted audit relating to disbursement of the amount under the said scheme during that period. He had only conducted a random inspection during the period of his audit from 24.11.1992 to 28.11.1992 and found that by forged 23 vouchers in the names of fictitious persons with some false addresses and registration numbers, a sum of Rs.42,320/- was misappropriated and it was also found that this was done by the accused and the concerned section clerk and others and submitted ExtP1 report which was forwarded to the Vigilance Department, on the basis of which, a vigilance enquiry was conducted and on the basis of the vigilance report, Ext.P77 Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 3 First Information Report was registered as Crime No.7/1996/VACB, Alappuzha by PW58 against the present accused, Pws4, 7, 14 and 13 and Mariyumma (the then Junior Superintendent) alleging offences under section 13(1)(c) read with section 13(2) of the P.C. Act and sections 468, 471 and 409 read with section 34 of the Indian Penal Code. Investigation in this case was conducted by PW59. He questioned the witnesses and recorded their statements. He seized Ext.P3 series vouchers as per Ext.P41 inventory. He had seized Exts.P21 to P24 and P31 registers as per Ext.P41 inventory. He had seized Ext.P25 and 26 attendance registers as per Ext.P78 inventory. He had seized Exts.P29 postal cover addressed to Sri. P. Soman, P30 postal cover addressed to Sri.K. Ramachandra Prasad, P32 postal cover addressed to Sri.K.V. Gopalakrishnan, P33 postal cover addressed to Sri.K. Ramachandra Babu, P34 postal cover addressed to Sri. K.P. M. Thomas, P35 postal cover addressed to Sri.K. Bhanumathi, P36 postal cover addressed to Smt.S.Ambika Devi, P37 postal cover addressed to Sri.C. Prasad, P38 postal cover addressed to Sri. P. Venugopal, Ext.P39 postal cover addressed to Sri. K.V. Satheesan, P47 postal cover addressed to Smt. M.K. Kamalamma, P48 postal cover addressed to Sri. K.P. Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 4 Raveendran, P49 postal cover addressed to Smt. K.P. Leelamani, P50 postal cover addressed to Sri. P.Sudhakaran, P51 postal cover addressed to Sri.Sudhakaran Achari, P52 postal cover addressed to sSmt. Soubhagyavathi, P53 postal cover addressed to Sri.Harikumar, P54 postal cover addressed to Sri.B. Chandrahasan, P55 postal cover addressed to Sri. A. Rajasekharan, P56 postal cover addressed to Sri.K. Venugopal, P57 postal cover addressed to Sri. K. Ramachandra Prasad and P58 postal cover addressed to Sri.V.K. Babu proved through PWs 42, 43, 44, 45, 46 as per Ext.P79 inventory and seized Exts.P59, 60, 61, 62, 63, 64 and 65 reports given by PWs47, 48, 49, 50, 51, 52 and 53 village officers as per Ext.P80 inventory. He had seized Exts.P81 and 82 letters as per Ext.P83 inventory. As per Ext.P42 inventory, he had seized Ext.P46 report and Exts.P84, P85 and P89 as well. He had seized Ext.P4 record of registration containing Exts.P4(a) to P4
(e) and Ext.P5 record of registration containing entries Ext.P5
(a) and Ext.P6 record of registration containing entries Ext.P6
(a), Ext.P7 record of registration containing entries Ext.P7(a) and Ext.P8 certificate of registration No.4215/84 in the name of Sri. Ramanan, Ext.P9 record of registration containing entries Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 5 Ext.P9(a), Ext.P10 record of registration containing entries Ext.P10(a), Ext.P11 record of registration containing entries Ext.P11(a), Ext.P12 record of registration containing entries Ext.P12(a), Ext.P13 record of registration containing Ext.P13
(a), Ext.P14 record of registration containing entries Ext.P14
(a), Ext.P15 record of registration containing entries Ext.P15
(a), Ext.P16 record of registration containing entries Ext.P16(a) , Ext.P17 record of registration containing entries Ext.P17(a), Ext.P18 record of registration containing entries Ext.P18(a), Ext.P19 record of registration containing entries Ext.P19(a), Ext.P20 record of registration containing entries Ext.P20 (a), Ext.P21 office year book containing entries Ext.P21(a) to P21
(d), Ext.P22 distribution register containing entries Ext.P22(a) to P22(k) and original of Exts.P57 to P76 which were later substituted by certified copy showing the relevant entries during the course of trial as per supported inventories produced by the respective officers. After completion of the investigation it was revealed that the present accused alone was responsible for making the false entries and created false vouchers and misappropriated the amount entrusted to him for the purpose of disbursement. He gave final report for approval against the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 6 first accused alone deleting other persons shown in the First Information Report and submitted draft final report along with the request to grant sanction to the appointing authority for prosecuting the accused under sections 409, 468, and 471 of the Indian Penal Code and Section 13(1)(c) read with section 13(2) of the P.C.Act, 1988 and PW60, the appointing authority had perused the materials and gave Ext.P91 sanction as required under law. PW61 his successor obtained Ext.P91 sanction for prosecution against the accused from PW60 and verified the records, completed the investigation and submitted split final reports against the accused. On the basis of Ext.P3(a) to P3(c) voucher No.22670 for an amount of Rs.200/-, voucher No.22688 for an amount of Rs.1620/-, voucher No.22691 for an amount of Rs.1620/- dated 27.11.1990 totalling an amount of Rs.3,440/- C.C.No.55/2000 was taken on file. In respect of vouchers Ext.P3
(d) to P3(f) with Nos.22989 for Rs.3,240/- voucher No.22990 for Rs.2,340/-, voucher No.22752 for an amount of Rs.1,620/- dated 27.11.1990 totalling an amount of Rs.6,300/- C.C.No.56/2000 was taken on file. In respect of vouchers Ext.P3(g) to P3(i) voucher No.22993 for Rs.2,340/-, voucher No.23017 for Rs.2,340/- and voucher No.23093 for Rs.2,340/- Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 7 totaling an amount of Rs.7,020/- dated 30.11.1990 C.C.No.57/2000 was taken on file. In respect of vouchers Exts.P3(j) to (l) with voucher No.23106 for an amount of Rs.2,340/-, voucher No.23239 for an amount of Rs.480/-, voucher No.23427 for an amount of Rs.1,860/- totalling an amount of Rs.4,680/- dated 22.12.1990 C.C.No.58/2000 was taken on file. In respect of vouchers Ext.P3(m) to (o) with voucher No. 23433 for Rs.1,860/-, voucher No.23437 for Rs.1,860/- and voucher No.23461 for Rs.1,620/- totalling an amount of Rs.5,340/- dated 22.12.1990 C.C.No.59/2000 was taken on file. In respect of vouchers Ext.P3(q) to (r) with voucher Nos.23529, 23586 and 23568 for Rs.960/- each totalling an amount of Rs.2,880/- dated 24.12.1990 C.C.60/2000 was taken on file. In respect of Ext.P3(s) to (v) with voucher No.23573 for Rs.960/- dated 24.12.1990, voucher No.23967 for Rs.2580/- dated 31.12.1990 and voucher No.8123 dated 18.2.1991 for Rs.2,580, totalling Rs.6,120/- C.C.No.61/2000 was taken on file. In respect of vouchers Ext.P3(v) to (x) voucher No.8300 for Rs.2,580/-, voucher No.8300 for Rs.2,580/- and voucher No.8581 for Rs.1,860/- totalling an amount of Rs.7,020/- C.C.No.62/2000 was taken on file.
Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 8
4. When the accused appeared in all these cases, after hearing both sides, charge under section 13(1)(c) read with section 13(2) of the P.C. Act, 1988 and sections 409, 468 and 471 of the Indian Penal Code was framed and the same was read over and explained to him and he pleaded not guilty. Thereafter as per an application filed by the accused as Crl.M.P.No.839/2000, joint trial of all these case were allowed and evidence was recorded in C.C.No.55/2000. In order to prove the case of the prosecution, Pws 1 to 61 were examined and Exts.P1, P2, P3 series (P3 (a) to P3(x)) and P4 to P91 were marked on their side. After closure of the prosecution evidence, the accused was questioned under section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had also filed a written statement as part of the statement under section 313 of the Code, where he had admitted that he was working as Junior Employment Officer, Alappuzha District Employment Exchange during the relevant time and he was in the cash counter and disbursed the amount during the relevant period. But he had stated that he was not responsible for the preparation of vouchers and he had no control over the money Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 9 and he had not forged any document or misappropriated any amount as alleged. But no defence evidence was adduced on his side. After considering the evidence on record, the Enquiry Commissioner and Special Judge, Thiruvananthapuram held that the prosecution has failed to prove the charges levelled against him in C.C.Nos.56 and 57 of 2000 and found him not guilty of the offences alleged under section 13(1) (c ) read with section 13(2) of the P.C. Act and sections 409, 468 and 471 of the Indian Penal Code and acquitted him of those charges in those two cases. The Special Judge found him guilty of the offences under section 13(1)(c) read with section 13(2) of the P.C. Act, 1988 and also found him guilty under sections 409 and 471 of the Indian Penal Code in C.C.No.55/2000, 58/2000, 59/2000, 60/2000 and 62/2000 and found him guilty under section 13(1)
(c) read with section 13(2) of the P.C.ACt, 1988 and also under sections 409, 468 and 471 of the Indian Penal Code in C.C.No.61/2000 and convicted him thereunder accordingly and sentenced him to undergo rigorous imprisonment for two years each and also to pay a fine of Rs.2,000/- each in all these cases under section 13(1)(c) read with section 13(2) of the P.C. Act, 1988 and further sentenced him to undergo rigorous Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 10 imprisonment for one year each under sections 471 and 409 of the Indian Penal Code in all the six cases and further sentenced to undergo rigorous imprisonment for one year under sections 468 of the Indian Penal Code in C.C.No.61/2000 and directed the substantive sentences to run concurrently. Set off was allowed for the period of detention already undergone in all these cases under section 428 of the Code. Aggrieved by the same, the above respective appeals were filed by the accused.
5. Since all these cases arose out of a common judgment and also on the basis of the common evidence and documents, this Court also felt that all these cases can be disposed of by a common judgment.
6. Heard Sri. K. Ramakumar, senior counsel appearing for the appellant and Sri. Rajesh Vijayan, Public Prosecutor appearing for the State.
7. Learned senior counsel appearing for the appellant submitted that there is no evidence to show that the impugned vouchers were really written by the accused or with the dishonest fraudulent intention of used the same as genuine documents and he had misappropriated the amount. None of these impugned vouchers were sent for expert opinion to come Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 11 to a definite conclusion that those documents were in the hand writing of the accused. The evidence of co-workers, who were also originally shown as accused, cannot be used for corroborating the evidence of prosecution to prove that these writings are in the handwriting of the accused. There is no explanation forthcoming for not sending the impugned documents for expert opinion. Further, it will be seen from the evidence that normally two persons will be in the counter and the accused is in the cash counter and he had no role to play in preparation of the vouchers. He had only to disburse the amount to the person who produces the voucher which contains endorsement to pay. So under such circumstances, it cannot be said that the accused had misappropriated the amount as claimed by the prosecution. Further, it will be seen from the evidence that on days when there are more crowd of beneficiaries, the subsidiary register could not be written on the same day and it will be written on the next day on the basis of the vouchers and thereafter the main cash book will be prepared. This practice was deprecated even by the Special Judge, who tried the case. When there are more than one person is in charge of handling of the amount and disbursement Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 12 of the amount, then it cannot be said that the present accused alone had committed the the offence alleged and he alone cannot be convicted for the said offence. The persons whose names were found in the vouchers were not examined to prove that they have not received the amount. Further, the registers kept in the village office showing the name and address of the persons eligible for receiving the unemployment wages under the scheme were not seized. The documents produced by the prosecution only show that those persons were not available at that time in that address. That does not mean that there was no such address and no person in existence. The postmen who returned the articles with the endorsement 'not known', 'addressee not found' were examined to prove those endorsements. The postmaster who proved the same has no direct knowledge about the same. In two cases namely C.C.Nos.56/2000 and 57/2000, the same court has found that the prosecution has failed to prove the cases against the accused beyond reasonable doubt and acquitted the accused and the same yardstick ought to have been extended by the Special Judge in these a cases as well. Further, even assuming that there were some vouches prepared alone is not sufficient Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 13 to convict the accused. Unless it is proved by the prosecution that those vouchers were used by the accused with knowledge or reason to believe that they were forged documents and misappropriated the amount mentioned in the vouchers for his own purpose, he cannot be convicted for the offences alleged. He had relied on the decisions reported in Kajal Dey v. State of Tripura (2014 KHC 3518), Manilal v. State of Kerala (1998 (2) KLT 101) and Raghvan v. State of Kerala (2012 KHC 420) in support of his case.
8. On the other hand, learned Public Prosecutor submitted that the evidence in this case will go to show that modus operandi of the accused was to prepare false vouchers containing registration numbers which is not in existence or with register numbers not belonging to the persons shown in the vouchers and appropriated the amount mentioned in the vouchers for his purpose. Further, it will be seen from the evidence that the amounts were normally entrusted to the accused for the purpose of disbursement and it is his duty to return the balance amount with the vouchers showing disbursement in the evening. So it cannot be said that the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 14 there was no entrustment of the amount to the accused and he had no domain over the amount. If he had not properly accounted for the amount entrusted to him, then it can be only presumed that he had misappropriated the amount for his purpose. The evidence in this case will go to show that the amounts mentioned in the impugned vouchers were not paid to the persons as they were not in fact in existence but fictious persons and there is no explanation forthcoming from the side of the accused for the same as well. So under the circumstances, the court below was perfectly justified in convicting the appellant for the offence alleged.
9. The points that arises for consideration are:
i. whether the court below was justified in holding that the accused had created false documents making false entries with a fraudulent intention to use the same as genuine documents?
ii whether the court below was justified in holding that the accused had knowing that the impugned vouchers were not genuine vouchers, used the same as genuine vouchers to make unlawful gain for himself?
iii. whether the accused as a public servant or an officer Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 15 had fraudulently or with dishonest intention misappropriated the amount entrusted to him?
iv. whether the accused had with the dishonest intention committed criminal breach of trust by misappropriating the amount entrusted to him?
v. whether the court below was perfectly justified in convicting him for the offence under section 13(1)(c) read with section 13(2) of the P.C. Act and sections 409, 468 and 471 of the Indian Penal Code?
vi. If so, the sentence imposed is proper and legal?
10. Points 1 to 5:
Before going into the facts of this case let me consider the relevant penal provisions and the precedents. Sections 405, 409, 463, 464, 468 and 471 of the Indian Penal Code read as follows:
405. Criminal breach of trust:-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, expresses or implied, which he has made touching Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 16 the discharge of such trust, or wilfully suffers any other person so to do commits "criminal breach of trust".
409. Criminal breach of trust by public servant, or by banker, merchant or agent:- Whoever, bing 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".
463. Forgery:-[Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document:-[a person is said to make a false document or false electronic record-
First - who dishonestly or fraudulently-
(a) makes, signs,seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 17
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed;or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
468. Forgery for purpose of cheating:- Whoever Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 18 commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged [document or electronic record]:- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
Section 13(1)(c) of the P.C.Act reads as follows:
13.Criminal misconduct by a public servant:-(1) A public servant is said to commit the offence of criminal misconduct,-
(a) xxxx xxxx
(b) xxxx xxxx
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrustedto him or under his control as a public servant or allows any other person so to do;
11. In order to prove the offence under section 409 of the Indian Penal Code, it must be proved by the prosecution that there was entrustment of the property with the accused and he Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 19 had dishonestly misappropriated the same for his purpose.
12. In the decision reported in Jaikrishnadas Manohardas Desai and another v. State of Bombay (AIR 1960 SC 889) it has been observed that:
To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion,misappropriation or misapplication by the accused of the property entrusted to him or over which he has domination. The principal ingredient of the offence being dishonest misappropriation or conversion, which may not ordinarily a matter of direct proof, entrustment of property and failure, in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property, entrusted to him or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent readily be made". Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 20
13. In the decision reported in Krishan Kumar v. Union of India (AIR 1959 SC 1390) it has been observed that:
"The offence under s. 5(1)(c) is the same as embezzlement, which in English law, is constituted when the property has been received by the accused for or in the name or on account of the master or employer of the accused and it is complete when the servant fraudulently misappropriates that property.
Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Therefore, when a particular thing has gone into the hands of a servant he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to deprive the master of it.
It it not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goos of his mater the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 21 was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is enough to establish facts which give rise to a suspicion and then by reason of S.106 of the Evidence Act to throw the onus on him to prove his innocence.
If under the law it is not necessary or possible for the prosecution to prove the manner in which the goods have been misappropriated then the failure of the prosecution to prove facts it sent out to prove the manner of misappropriation or the identity of the goods would be of little relevance".
14. The same view has been reiterated in the decision reported in State of Kerala v. Vasudevan Namboodiri (1987 (2) KLT 541) and Bagga Singh v. State of Punjab [1996 Crl.L.J. 2883 (SC)].
15. In the decision reported in Vishwa Nath v. State of J. & K (AIR 1983 SC 174) it has been held that:
".... once it is proved by the prosecution that the amount Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 22 was entrusted and it was misappropriated by the public servant, then refund of the amount when act of defalcation discovered does not absolve him from the offence committed".
16. In the decision reported in Som Nath Puri v.State of Rajasthan (AIR 1972 SC 1490), it has been observed that:
"Section 405 I.P.C does not provide that the entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression "entrusted" in S.409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over".
17. In the decision reported in T. Ratnadas v. State of Kerala (1999 Crl.L.J. 1488) it has been held that:
"..... if entrustment of money to the accused is proved, failure of the accused established by preponderance of probability that he has discharged his duty to disburse the said Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 23 amount to the beneficiaries, then conviction for the offence for the misappropriation is established".
18. In the decision reported in State of Rajasthan v. Kesar Singh (1969 Crl.L.J 1595) the Rajasthan High Court has held that:
"In cases of criminal breach of trust a distinction has to be drawn between the person entrusted with property and one having control or general charge over the property. In case of the former, if it is found that the property is missing, without further proof, the person so entrusted will be liable to account for it. In the latter case, that person will be liable only when it is shown that he misappropriated it or was a party to criminal breach of trust committed in respect of that property by any other person".
19. So it is clear from the above decisions that in order to attract the offence under section 409 of the Indian Penal Code, it must be proved by the prosecution that the accused was working as clerk or officer of an institution and he was entrusted with the property of his employer or he had control over or dominion with the same with a direction to disburse the same in a particular manner and he if he fails to account for the same, then unless a specific explanation given by the accused Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 24 for non accounting for the same, then he will be said to have committed the offence of misappropriation by criminal breach of trust. If the accused had created a false document for the purpose of using the same as genuine document, then he is said to have committed the offence punishable under section 468 of the Indian Penal Code. If the accused had used a false document either created by him or created by some other person with the knowledge that it is a false document and by using the same, cheated some person or derived any advantage for himself or to some other person, then he had said to have committed the offence punishable under section 471 of the Indian Penal Code. If a public servant with the dishonest intention misappropriated the amount entrusted to him for his own purpose or for the purpose of somebody else, then he will be committed the offence punishable under section 13(1)(c) read with section 13(2) of the P.C. Act, 1988.
20. In the decision reported in Kajal Dey's case (cited supra) it has been held that If there is no evidence to prove that the chalans were prepared by the accused for his own interest or property, then no offence is made out against him either under section 468 or 471 of the Indian Penal Code. In the same Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 25 decision, it has been held that the accused has by way of adducing evidence partly proved that money which was collected through cash counters and received by him were normally handed over to the SDO and it was some other person who tendered the money as per the chalans, then it cannot be said that it was proved beyond reasonable doubt that the accused had forged chalans and falsified the accounts and conviction of the accused in such circumstances is bad in law.
21. In the decision reported in Manilal's case (cited supra), it has been held that before convicting the accused under section 471 of the Indian Penal Code, the prosecution after establishing beyond doubt as to who has authority of the document, then only the next stage comes that such forged document has been used by the accused as genuine one. In the absence of proof as to forgery, no conviction can be rendered under section 471 of the Indian Penal Code.
22. In the decision reported in Roshan Lal Raina v. State of Jammu & Kashmir (1983 (2) SCC 429) it has been held that if the prosecution has not proved the entrustment of money to the accused, then he cannot be convicted for the offence Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 26 under section 409 of the Indian Penal Code.
23. In the decision reported in Raghavan K v. State of Kerala (2012 KHC 420) it has been held that in order to attract an offence under section 13(1)(c) of the P.C. Act, it must be proved by the prosecution that entrustment or dominion of the property to the accused and misappropriation of the same by him. With the above principles in mind, the case in hand has to be considered.
24.It is an admitted fact that the accused was working as Junior Employment Officer in Alappuzha Employment Exchange during the period 24.11.1989 to 24.06.1991. It is also an admitted fact that there were complaints regarding irregularities in the disbursement of amount under the Unemployment Assistance Scheme effected during the period 1990-1991 in the office of Alappuzha District Employment Exchange and PW1, the Divisional Employment Officer was directed to conduct an enquiry in respect of the same and he had conducted random inspection of the documents maintained in that office, from 24.11.1992 to 28.11.1992. During his inspection, it was revealed that 23 vouchers were falsely created and an amount of 42,320/- Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 27 was misappropriated and besides the accused, concerned Section Clerk and others were also responsible for the same and submitted Ext.P1 report regarding the irregularities found, the amount misappropriated with reasons for he same, which was revealed during his inspection and sought a vigilance enquiry to be conducted on that basis. On the basis of the same, vigilance enquiry was conducted and on the basis of the enquiry report, PW58, the then Deputy Superintendent of Police, Vigilance, Alappuzha registered Ext.P77 first information report as Crime No.7/1996/VACB, Alappuzha, against the accused, (PW5) one Sri.Anandhan, S/o.Chittan Pullan, Sreevijayam, Njarakkal, Puranad Post, Kollam, (PW7) Smt.Thulasibhai Indira, (PW14) Madhusoodhanan Pillai, (PW40) Smt.Ramani and (PW13) and Smt.Maniyamma, Former Junior Superintendent alleging offences under Section 468, 471, 477A, 409, 120B of the Indian Penal Code and Section 13(1)(c) and Section 13(2) of the Prevention of Corruption Act, 1988, alleging that they have misappropriated an amount of 53,360/- creating false vouchers. It is also an admitted fact that the investigation in this case was conducted by PW59 and final report was filed by PW61 against the present accused alone alleging offence under Section 409, Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 28 468, 471 of the Indian Penal Code and Section 13(1)(c) and Section 13(2) of the Prevention of Corruption Act, 1988. It is also an admitted fact that on the basis of Ext.P3(a) to P3(x) vouchers, in respect of three vouchers each split chargesheets have been filed and they were taken on file as C.C.No.55/2000 to C.C.No.62/2000 and they were jointly tried and the accused was acquitted in C.C.Nos.56/2000 and 57/2000 as prosecution could not prove the case in respect of vouchers involved in those cases beyond reasonable doubt and in rest of the cases he was convicted and sentenced against, which the above appeals were filed.
25. PW60 was the then employment training Director, who was the authority to remove the accused from service as he was not a gazatted officer and on the basis of the materials produced before him by the investigating offier, he gave Ext.P91 sanction, after satisfying that the accused had committed the offence punishable under Section 409, 468 and 471 of the Indian Penal Code and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act and gave sanction to prosecute the accused for those offences. There is nothing to disbelieve the evidence to PW60 on this aspect. Further there is no other Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 29 evidence adduced on the side of the defence to prove that he is incompetent to grant sanction and there is no proper application of mind of the sanctioning authority before granting sanction and the sanction is otherwise not valid in law. So under the circumstances, court below was perfectly justified in coming to the conclusion that the sanction was proper and the prosecution is not vitiated on that ground.
26. It is an admitted fact that the accused was working as Junior Employment Officer, District Employment Exchange, Alappuzha and during the disputed periods, namely, 27.11.1990, 30.11.1990, 22.12.1990, 24.12.1990, 31.12.1990, 18.02.1991 and 20.02.1991, the accused was entrusted with the work of disbursement of the wages to the candidates under the Unemployment Assistance Scheme. It is seen from the evidence of PWs 2, 3, 4, 7, 13, 14 and PW56 and Ext.P21(a) to (d) and Ext.22(a) to (j), the relevant office orders relating to the entrustment of the amount to the accused and his handling of the cash, during the relevant period, that he was entrusted with the amount for disbursement and after disbursement he was remitting the amount with the concerned clerk. It is also seen from their evidence that he was effecting payment to the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 30 condidates from the cash counter during these dates.
27. It is also seen from the evidence of Pws 2 to 7, 13, 14 and 54 that the procedure is that the amount will be entrusted to the officer in charge of the disbursement cash counter on the morning of the date of disbursement and after disbursement, he will have to return the balance amount with vouchers to the clerk of A1 section, who will verify and hand over the same to the clerk of A2 section, who will enter the same in the subsidiary cash book and the balance amount will be entered in the main cash book and thereafter it will be placed before the District Employment Officer, who will countersign the vouchers and sign the cash book. Though another clerk was provided to assist the officer in the cash counter, he had no role in the disbursement of the amount as it will be seen from the evidence of the above witnesses that he will only assist the officer in charge of the cash disbursement and the cash disbursement will be made by the officer only as it is he who signed the vouchers as well against the column paid rupees after entering the amount and putting his signature and name beneath the same. Further it is he who made endorsement regarding the receipt of the amount and return of the amount Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 31 in Ext.P22 register as well. The accused had no case that he had not received the amount on the respective dates and returned the balance amount on the basis of the vouchers using which the disbursement was made. So under the circumstances, it cannot be said that there is no entrustment of the amount and he has no responsibility to account and he has no domain over the amount which has been entrusted to him for a particular purpose of disbursement of the amount in a particular manner to the persons eligible to get the amount as per the scheme. So under the circumstances, the court below was perfectly justified in coming to the conclusion that the prosecution had proved entrustment of the amount to the accused and he was responsible for accounting the same and in the absence of any proper explanation or any defect found in the disbursement, then he will be responsible for the same.
28. The court below had found in C.C.No.55/2000 that Ext.P3(a) was prepared by the accused for the purpose of misappropriation and he was responsible for the same and also for using the forged document as genuine document. Similarly in C.C.No.58/2000, the court below found that he was responsible for misappropriation of the amount shown in Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 32 Exts.P3(j), P3(k) and P3(l) and also for using the forged document as genuine document. In C.C.No.59/2000, he was found liable for the offence of misappropriation and using the forged document as genuine namely Exts.P3(m), (n) and (o). In C.C.No.60/2000 the court below found that he is liable for the offence of misappropriation and for using the forged document as genuine namely Exts.P3 (q) and P3(r). In C.C.No.61/2000, the court below found that he is liable for misappropriation and also for using forged documents and also found that he is responsible for forging Ext.P3(u) and liable for misappropriation and using forged document namely Ext.P3(s) to (u). In C.C.No.62/2000, the court below found that he is liable for misappropriation using the forged documents as genuine namely Exts.P3(v) to (x). Let me consider whether the reasoning given by the court below on these aspects is proper or not.
29. The court below had relied on the evidence of official witnesses worked with the accused to prove the handwriting and signature in the disputed vouchers and also compared the same invoking the power under section 73 of the Evidence Act with the admitted writing of the accused available in the court records and the documents produced and marked in the case. Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 33 It is settled law that the handwriting or signature can be proved by sending the same to an expert or it can be proved through the person who had acquainted with the handwriting and the signature of the accused. Further, this can be supplemented by the court by examining the same by itself invoking the power under section 73 of the Evidence Act with the admitted handwriting of the accused. So merely because expert opinion was not obtained, it cannot be said that the prosecution has failed to prove the falsification of document by the accused. The court has got the power to compare the disputed handwriting or signature of the accused with that of his admitted signature/handwriting available and rely on the same has been approved by the Apex Court in the decisions reported in Ajay Kumar Parmar v. State of Rajasthan (2012 KHC 4540)=2012 (12) SCC 406), Ajith Savant Majagvai v. State of Karnataka (1997 (7) SCC 110), Neelalohithadasan Nadar v. George Mascrene (1994 (1) KLT 887(SC) (Three Judges Bench), State (Delhi Administration) v. Pali Ram (1979 (Crl.LJ 17 (SC) and followed by a High Court in Mohammed Rafi S. v. Fathahudeen and Others (2008 (3) Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 34 KHC 644)= ILR 2008(3) Ker. 641) and Sauda Beevi K.S v.Subaida Pareeth and Others (2012 (4) KHC 802) = 2012 (4) KLT 832). If there are other evidences, court can rely on the same coupled with comparison by using power under section 73 of the Evidence Act. So the court below was perfectly justified with using the above method and rightly came to the conclusion that the vouchers were in the handwriting of the accused. There is yet another circumstance for this as he is not expected to fill the vouchers or recommend payment as well and in these disputed vouchers it was done by the accused.
30. C.C.No.55/2000:
Ext.P3(a) is the voucher with No.22670 with name Sasikumar M with Reg.No.10194/80 with Roll No.8/84 which is said to be the document prepared and used for misappropriation. Ext.P2 is the record of registration in which Ext.P2(a) is the relevant entry regarding the Reg.No.10194/80. There the address shown is different. In Ext.P3(a) the address shown is Sasikumar M, Parathanattu House,Thiruvambady, Alappuzha East whereas in Ext.P2(a) the address shown as Sasikumar M, Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 35 Saroja Mandiram, Palace Ward, Alappuzha. Ext.P28 is the returned postal cover sent in the address shown in Ext.P3(a) with the endorsement no such addressee. This was proved through PW12, the concerned postmaster. It is true that the postman who made the endorsement was not examined but the postmaster is also competent to speak about the endorsement made. Further, the evidence of PW11, the Village Officer coupled with Ext.P27 report will go to show that there was no such person in that address. Ext.P72 the certified copy of the ledger folio of Pazhavedu village which is the present village to which Roll No.8/84 related to and it shows that it relates to one N. Sreedevi with Reg.No.W.540/79. So it is clear from this that Ext.P3(a) is a fabricated voucher on the basis of which the amount of Rs.200/- was said to have been paid to one M. Sasikumar, who is not in existence as per the documents produced. Further, it will be seen from the document that pay rupees was recommended by the accused and paid rupees was also written and signed by the accused. This was proved through the witnesses mentioned above. So it is clear from this that there was no possibility of this amount being paid to the person mentioned in Ext.P3(a) and in the absence of any Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 36 convincing evidence adduced on the side of the accused, it can only be presumed that he had misappropriated the amount by using that voucher with the knowledge that it was a fabricated document using the same as genuine for the purpose of misappropriating an amount ofRs.200/-. Further, the prosecution can only prove non existence of a person, a negative proof, by sending a notice in that address by registered post and also by conducting an enquiry through the Village Officer. Once it is proved by the prosecution that there is no such person mentioned in Ext.P3(a), then the burden shifts on the accused to prove that the person mentioned in the voucher is the real person and the amount was paid to him and there is no misappropriation which the accused failed to discharge. So the court below was perfectly justified in coming to the conclusion that he had misappropriated the amount of Rs.200/- mentioned in Ext.P3(a) and also came to the conclusion that he had used the forged document as genuine.
31. In order to attract the offence under sections 471 of the Indian Penal Code, it is not necessary that the document must be forged by a person, who used the same, but it is enough if it is proved that he had the knowledge that it is a Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 37 forged document and with the dishonest intention used the same as genuine document for achieving his purpose, then he will be said to have committed the offence punishable under section 471 of the Indian Penal Code. This was so held in the decision reported in A.S.Krishnan and others v. State of Kerala (2004 (11) SCC 576) and Bank of India v. Yeturi Maredi Shanker Rao and another (1987 Crl.L.J722 (SC) . So the court below was perfectly justified in convicting the appellant in C.C.No.55/2000 that he had committed the offence punishable under Sections 409 and 471 of the Indian Penal Code and also under section 13(1)(c) read with section 13(2) of the P.C.Act, 1988 and that finding does not call for interference.
32. C.C.No.58/2000:
The vouchers relating to this case are Exts.P3 (j),(k)and
(l). The court below found that Exts.P3(j) and (k) cannot be said to have been used by the accused and he could not have misappropriated the amount. But as regards Ext.P3(l), the court below found that he is responsible for misappropriation of the amount. It contains the voucher No.23427 for an amount of Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 38 Rs.1,860/- with the name Sudhakaran Achari K dated 22.12.1990. Pws 3 to 6 and 13 had deposed that these documents were filled by the accused as they were acquaintance with the handwriting. The registration number shown is 2117/84 and it was entered in Ext.P24 cash book as Ext.P24 (b) proved through PW13.
33. Ext.P4 (d) is the relevant entry in Ext.P4 record of registration which shows that the above registration number relates to one Jimmi K. Jose and not Sudhakaran Achari K. The roll number shown is also in complete as it was shown only as Roll No...../87. No roll number was specifically mentioned. It was admitted by the accused in 313 statement that vouchers Exts.P3(l) to (u) were signed by him in the place paid rupees after entering the amount.
34. Ext.P51 is the postal cover sent in the address shown in Ext.P3(l) and it was returned with the endorsement not known proved through PW43, the postmaster. Further it will be seen from the register that registration of Jimmi K. Jose lapsed in April, 1988. Though PW2 had stated that it was not he who signed at the place recommending payment as pay rupees, it is not necessary to go into those aspects especially when it is Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 39 proved that there was no such person and the amount mentioned in the voucher could not have been paid to that person. In the absence of convincing evidence adduced on the side of the accused that the person mentioned in the voucher is the real person and he had received the amount, it can only be presumed that using a forged document as genuine though no evidence as to who forged the same, he can be held responsible for the offences of misappropriation of the amount using the forged document as genuine knowing that it is a forged document and so court below was perfectly justified in convicting the appellant for the offence under sections 409 and 471 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the P.C.Act and that finding does not call for any interference.
35. C.C.No.59/2000.
The vouchers relating to this case are Exts.P3(m) to (o). Ext.P3(m) is having voucher No.23433 with name Raveendran K.P for an amount of Rs.1,860/- and it was said to have been disbursed on 22.12.1990 entered in Ext.P24(b) entry in Ext.P24 register, proved through PW13. It will be seen from Ext.P46 report given by PW20 that there was no registration with Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 40 Reg.No.8214 and the last registration in the year 1984 was 6267. The roll number mentioned in Ext.P3(m) is 32/88 and Ext.P68 is the certified copy of the ledger folio relating to the same proved through PW6 shows that it relates to one Sarala D, with Reg. No.4185/84. It was also proved that the voucher was in the handwriting of the accused. Ext.P48 is the postal cover proved through PW43 post master that there was no such addressee mentioned in Ext.P3(m). Ext.P59 report given by PW47 Village Officer also will go to show that there was no such person in that address. There is no explanation forthcoming from the side of the accused regarding this aspect. So under the circumstances, the court below as perfectly justified in coming to the conclusion that he was responsible for misappropriation of the amount using a forged document as genuine document.
36. Ext.P3(n) is a voucher with No.23437 for an amount of Rs.1,860/- in the name of Sudhakaran P. with Reg.No.311/83. It will be seen from the relevant entry in Ext.P11 register as Ext.P11(a) that it relates to one K. Balakrishnan. The roll number mentioned in the voucher is 3/88 and Ext.P67 certified copy of the ledger folio regarding Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 41 this roll number shows that it is in the name of Sudha V.J with Reg. No.5891/84. The payment was made on 22.12.1990 and it was disbursed by the accused evidenced by the entry in Ext.P24(b) proved through PW13. Ext.P50 is the postal cover proved through PW43, the Postmaster, which was returned with the endorsement no such person. Ext.P59 is the report given by PW47, Village Officer of the concerned village showing that there was no person as Sudhakaran P is mentioned in Ext.P3(n) available in that address. So the court below was perfectly justified in coming to the conclusion that in the absence of any evidence adduced on the side of the accused, it can only be presumed that he had misappropriated the amount using the forged document as genuine document and rightly convicted him for the offeces under sections 409 and 471 of the Indian Penal Code and Section 13(1)(c) read with section 13(2) of the P.C. Act.
37. Ext.P3(o) is the voucher with No.23461 with name Leelama K.P for an amount of Rs.1,620/- with date 22.12.1990 and Reg.No.6116/83 and the amount was disbursed by the accused and he had singed at the relevant place and it was entered in Ext.P24 register proved through PW17. Registration Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 42 number shown is W.6118. Ext.P12 (a) is the relevant entry in Ext.P12 register which will show that this registration number relates to one Ramani K.P and not Leelamani. Ext.P49, the returned postal cover sent in that address proved through PW43 Postmaster shows that there was no such addressee. This was fortified by Ext.P59 report of the Village Officer PW47 as well. There was no roll number shown as well. It cannot be said that the accused was not aware of these discrepancies and he had paid the amount in spite of all these things which is evident from the entry in Ext.P24. So the court below was perfectly justified in coming to the conclusion that the amounts mentioned in all these vouchers were misappropriated by the accused using a forged document as genuine as a public servant and thereby he had committed the offences punishable under sections 409 and 471 of the Indian Penal Code and section 13 (1) ( c) read with section 13(2) of the P.C.Act and the finding does not call for any interference.
38. C.C.No.60/2000:
This relates to vouchers Exts.P3(p) to P3(r). Ext.P3 (p) is voucher with No.23529 with name Soubhagyavathi with Reg. No.W.1717/77. The relevant entry in record of registration of Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 43 that entered in Ext.P13(a) shows that the register number relates to one R. Ramani examined as PW14. She had categorically stated that she had not received the amount as per Ext.P3(p) and it was not in her handwriting and the signature seen is not hers. This fact was not denied as well. Roll number shown is 37/85 and 37 was written in redink. The amount paid was Rs.960/- as per the voucher. Admittedly this was disbursed by the accused. The employment officer deposed that there was no such roll number in Puliyoor village. Ext.P52 is the postal cover sent in that address proved through PW44 which shows that it was returned with the endorsement that there was no such person. This was further proved by Ext.P60 report of PW48, the concerned village officer. So it will go to show that this amount has been misappropriated using a forged document by the accused.
39. Ext.P3 (q) is a voucher with No.23586 issued in the name of Rajasekharan A for an amount of Rs.960/- dated 24.12.1990 with Reg.No.9131. Ext. P14(a) will go to show that the registration number relates to one Udayan R, who was examined as PW 34 and deposed that he had not received the amount. The roll number shown is 17/85 and it was written in Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 44 redink. Ext.P71 is the certified copy of the folio register which relates to Sulochala V.K with Reg.No.1865/81. Ext.P55 postal cover proved through PW44, Postmaster will go to show that it was returned with the endorsement no such addressee. Further Ext.P60 report proved through PW48, Village Officer will go to show that there was no such addressee in Puliyoor village. So it can also be presumed that the accused had misappropriated the amount using a forged document.
40. Ext.P3(r) is a voucher with No.23658 with name Chandrasekharan V and Reg.No.3811/78. Ext.P15(a), the relevant entry in Ext.P15 register shows that it relates to one Anandan M and it will be seen from the voucher that Rs.960/- was paid as per the endorsement made by the accused and it was filled by the accused as well. Roll Number shown was 12/85 and 12 was written in redink. PW56 deposed that there was no such roll number given. Ext.P54 is the postal cover proved through PW44 Postmaster which will go to show that it was returned with the endorsement no such addressee. Ext.P60 report given by PW48, Village Officer also will go to show that there was no such person in that address. So in the absence of any convincing evidence adduced on the side of the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 45 accused that this amount paid to the real persons, it can only be presumed that these amounts covered by the vouchers were misappropriated by the accused using a forged document as the genuine document as a public servant and he had committed the offence punishable under sections 409 and 471 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the P.C.Act and the court below was perfectly justified in convicting him for the said offence.
41. C.C.No.61/2000
It relates to vouchers Ext.P3(s) to P3(u). Ext.P3(s) is voucher No.23573 for an amount of Rs.960/- dated 24.12.1990 with name Harikumar C with Reg. No.6312/77. Ext.P16(a) will go to show that it relates to one Sugathan S.P and not in the name of Harikumar. The roll number mentioned is 35/85 and 35 was written in redink filled by the accused and the evidence of PW56 will go to show that there was no such roll number in Puliyoor village. Ext.P53 is the postal cover proved thorough PW44, Postmaster which will go to show that it was returned with the endorsement no such addressee. Ext.P60 coupled with the evidence of PW48, Village Officer also will go to show that there was no such person in that address. Admittedly, the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 46 amount was disbursed by the accused. So it can only be presumed that the accused had misappropriated the amount using a forged document and the court below had rightly come to such a conclusion as well.
42. Ext.P3(l) is a voucher with No.23967 for an amount of Rs.2,580/- issued in the name of Kamalamma with Reg.No.W.1821 with date 31.12.1990. The relevant entry in Ext.P17(a) shows that it relates to one Mariyumma Mary which lapsed in May, 1986. Roll number mentioned therein is 37/87 and Ext.P69 shows that it relates to one Subhadra C.P with Reg.No.6804/82 who was examined as PW30 and she deposed that he had not received any amount and the signature and handwriting in Ext.P3 (l) is not hers. This amount was disbursed by the accused. Ext.P47 is the postal cover sent in that address proved through PW 42, Postmaster which will go to show that it was returned with the endorsement that there was no such person. Ext.P65 report proved through PW53, Village Officer Ennakkad will go to show that there was no such person in that address. So it is clear that the amount was not paid to any person but it was misappropriated by the accused using the said voucher as genuine document knowing Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 47 that it is a fabricated document.
43. Ext.P3(u) is a voucher with No.8123 admittedly prepared by the accused in which he had recommended for payment and also paid the amount also. It will be seen that there was no such person and it was proved by the witnesses that even writing in vouchers were made by the accused and the court below had compared the same and come to a conclusion that the handwriting is that of the accused.
44. Ext.P31(b) relates to voucher Nos.8120 to 8125 in Ext.P31 register. According to PW13, these writings were that of the accused and it takes in Ext.P3(u) voucher with No.8123. It is relate to payment of Rs.2,580/- and the entire voucher was filled by the accused himself. Further it will be seen Ext.P3(u) tht it is issued in the name of one Ambika Devi with registration No.3191/84. It will be seen from Ext.P18(a) entry in Ext.P18 the record of registration it stands in the name of one Vahida R who was examined as PW24 and deposed that she did not receive any amount as mentioned in Ext.P3(u). The roll number is shown as ..../87. Ext.P36 is the returned cover proved by PW16, Postmaster that it was returned with the endorsement not known. Further Ext.P63 report proved by PW56 Village Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 48 Officer will go to show that no such person as Ambika Devi mentioned in Ext.P3(u) residing in that village. So it is clear from this that the person mentioned in Ext.P3(u) was a fictitious person and the voucher was prepared in the handwriting of the accused himself and it was he who recommended to pay it and it was he who disbursed the amount as well as both the writings were in the handwriting of the accused. So the court below was perfectly justified in coming to the conclusion that he had forged the document and used the same as genuine document and misappropriated the amount of Rs.2,580/- mentioned in the voucher and rightly convicted him for the offences under sections 409, 471 and 468 of the Indian Penal Code and section 13(1) read with section 13(2) of the P.C. Act in this case.
45. C.C.No.62/2000:
This case relates to voucher marked as Exts.P3(v) to (x). Ext.P3 (v) relates to voucher No.8300 in the name of one Venugopal K. of Purakkad village with Reg.No.3011/83. Ext.P19
(a), the relevant entry in Ext.P19 register shows that this registration number relates to one Vinayakumar and not Venugopal. The amount paid was Rs.2,580/- and it was paid by Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 49 the accused which is evident from the endorsement made by him in the said voucher. Further, there is no roll number as such.
In the place of roll number, what is written is ...../87. Ext.P56 is the postal cover which was returned with the endorsement no such addressee and it was proved through PW45, Postmaster of the concerned post office. PW18 is the Village Officer of the Purakkad village, who gave Ext.P44 report stating that no such person in that address. So it is clear from this that there was no possibility of payment of this amount to the candidate mentioned in Ext.P3(v) and it cannot be said that the accused was not aware of these facts. So knowing that it is a forged document, using that as a genuine document, he had made entries that amount was paid to the candidate without paying the same to him and thereby he had misappropriated the same. So the court below was perfectly justified in coming to the conclusion that this amount was misappropriated by him using a forged document as genuine document.
46. Ext.P3(w) is a voucher in the name of one Smt. Bhanumathi with Reg.No.3212/83 for an amount of Rs.2,580/- dated 20.2.1991. Ext.P20 (a) is the relevant entry in the original record of registration which shows that this registration Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 50 number relates to one Smt.Bindu Babu V.S of Purakkad village. Here also there is no roll number provided. In the place of roll number what is written is ..../87. Ext.P35 is the postal cover proved through PW15, Postmaster, which will go to show that there was no such addressee mentioned in Ext.P3 (w) in that address. The evidence of PW18, Village Officer coupled with his report Ext.P44 also will go to show that there was no such addressee in that address. Though the court below has found that there is some difference in the handwriting, came to the conclusion that the amount was paid by him and as such, he had knowledge about the fabrication of the document and as such, he is responsible for misappropriation of the amount as the amount could not have been paid to the person mentioned in that document and correctly held that he had misappropriated the amount using a forged document as genuine document.
47. Ext.P3(x) relating to voucher No.8581 for an amount of Rs.1,860/- in the name of Thomas P.M dated 23.2.1992. The village shown as Purakkad village. Reg.No. shown is 4113/84. Ext.P4(a) is the relevant entry in the records of registration which shows that it relates to one Gopalakrishhan and not Thomas P.M. Roll No.78/88 was mentioned in the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 51 voucher and the evidence will go to show that there is no such roll number given. Ext.P34 is the postal cover proved through PW15, Postmaster, will go to show that it was returned with the endorsement no such addressee. The evidence of PW18, Village Officer, coupled with Ext.P44 report also will go to show that no such person mentioned in Ext.P3 (x) is available in that address. The evidence of the Village Officer in all these cases will go to show that names of the persons mentioned in those vouchers were not seen in the register maintained in the village office showing the persons entitled to get unemployment assistance wages. It is true that they have not mentioned so in the report and the investigating officer had not taken any steps to seize those documents as well. But that alone is not sufficient to disbelieve the evidence of the Village Officer or the Postmaster on this aspect, as negative evidence can be given only in that fashion and no positive evidence could be possible in such case. This can be proved by the accused by examining that person to show that he is the real person to whom the amount was paid. No such attempt was made on the side of the accused in this case. It cannot be said that he had no knowledge about the discrepancies in the voucher. So it is clear from the Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 52 evidence that there is no possibility for payment of the amounts to the persons mentioned in the vouchers and in such circumstances it can only be presumed that it was misappropriated by the officer who was in charge of the disbursement of the amount in the absence of any convincing evidence to prove that it was it was a mistake. So under the circumstances, the court below was perfectly justified in coming to the conclusion that the accused had misappropriated the amount using those vouchers which are fabricated with the knowledge that it is a fabricated document to get financial gain for himself.
48. The contention of the counsel for the appellant that it is not possible for him alone to misappropriate the amount and there are other persons also involved in the process and as such, he cannot be convicted for the offence. It may be mentioned here that merely because the investigating officer had not arrayed all the persons responsible for the misappropriation as accused alone is not sufficient to exonerate the accused/appellant, if there are evidences to show that he is also responsible for the commission of the offence and it was done by him knowing that the documents were fabricated for Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 53 the purpose of disbursing the amount in favour of wrong persons or non existent persons. In the decision reported in T. Retnadas v. State of Kerala (1999 Crl.L.J1488), this Court in a similar case held that once the entrustment of amount with the accused is proved, then failure on the part of the accused to establish by preponderance of probability that he has discharged his duty to disburse the said amount to beneficiary, then he will liable for misappropriation of that amount and he can be convicted for the offence under section 409 and 5(1)(c) of the P.C. Act, 1947. In the same decision it has been held that if there is sufficient evidence to show that disputed signature and handwriting were forged by the accused, then failure to send the disputed signature and writing to handwriting expert for expert opinion is not fatal. So under the circumstances, the court below was perfectly justified in convicting the appellant in C.C.Nos.55/2000, 58/2000, 59/2000, 60/2000, 61/2000 and 62/2000 for the offences under sections 409 and 471 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the P.C. Act and further convicted him for the offence under section 468 of the Indian Penal Code in Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 54 C.C.No.61/2000 and the finding does not call for any interference. The points are answered accordingly.
49. Point No.(vi):
Learned counsel for the appellant submitted that the sentence imposed is harsh. The court below sentenced the accused to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2,000/- each, in default to undergo simple imprisonment for two months each under section 13(1)
(c) read with section 13(2) of the P.C.Act and further sentenced to undergo rigorous imprisonment for one year each for the offences under sections 471 and 409 of the Indian Penal Code, in all the six cases and further sentenced to undergo rigorous imprisonment for one year for the offence under section 468 of the Indian Penal Code in C.C.No.61/2000.
50. Considering the nature of offences and also the manner in which the offence was committed and also considering the fact that showing leniency for offences committed by the persons under the P.C.Act will spread a wrong message to the society and cause loss of faith in the society in the criminal justice delivery system, this Court feels that the sentence imposed cannot be said to be harsh or Crl.A.Nos.1104,1109,1108, 1107,1105 & 1106 of 2001 55 excessive warranting interference at the hands of this Court especially the court below had directed the substantive sentences in all these cases to run concurrently. So I do not find any reason to interfere with the sentence imposed by the court below as well. The court below had considered all these aspects and rightly exercised the discretion, which do not warrant interference at the hands of this Court. The point is answered accordingly.
In the result, all these appeals fail and the same are hereby dismissed. The order of conviction and sentence passed by the court below in all these cases are hereby confirmed.
Office is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
/true copy/
P.S to Judge
Crl.A.Nos.1104,1109,1108,
1107,1105 & 1106 of 2001 56
K. RAMAKRISHNAN, J.
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Crl.A.Nos.1104,1109, 1108,1107,1105 & 1106 of 2001 .....................................
29th January, 2016.
O R D E R
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