Supreme Court - Daily Orders
P.N. Sukumaran vs State Of Kerala on 1 August, 2017
Bench: Ranjan Gogoi, L. Nageswara Rao, Navin Sinha
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1569 OF 2011
P.N. SUKUMARAN ...APPELLANT(S)
VERSUS
STATE OF KERALA ...RESPONDENT(S)
O R D E R
1. The accused appellant has been convicted under Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the P.C. Act”) by the learned trial Court. The said conviction has been affirmed by the High Court. Aggrieved, the appellant is in appeal challenging the aforesaid conviction. The sentence imposed i.e. four years rigorous Signature Not Verified imprisonment by the learned trial Court Digitally signed by VINOD LAKHINA Date: 2017.08.04 17:16:07 IST Reason: 2 has, however, been reduced by the High Court to a period of two years rigorous imprisonment.
2. The gravamen of the charges levelled against the accused appellant is that as a public servant he had claimed to disburse wages to certain persons working in the Government Guest House at Mundakkayam including one Surendran, Parayil House, Mundakkayam. It is alleged that no such wages were actually disbursed and the amounts of such payments were misappropriated by the accused appellant along with two other persons. The prosecution to support its case had, inter alia, examined one Surendran son of Pappan as P.W.-7 who in his deposition clearly stated that he had not received any money from the accused appellant.
3. In a parallel proceeding instituted against one M. Gangadharan (Accused No.3, 3 since acquitted), by way of Departmental proceedings, the aforesaid Gangadharan had examined one Surendran s/o Raghavan who admitted receipt of the wages. On the basis of the said testimony of Surendran s/o Raghavan the third accused in the criminal case i.e. M. Gangadharan was exonerated in the vigilance/Departmental proceedings. It was, therefore, contended on behalf of the appellant at the hearing before this Court held on 16th March, 2007 that this vital aspect of the matter was ignored by the learned trial Court. Taking into account the said submissions, this Court by its order dated 16th March, 2007 directed the prosecution to place before the learned trial Court the said materials. It was further directed that the learned trial court would record the evidence of Surendran s/o Raghavan and thereafter arrive at its finding on the above issue 4 and send the same to this Court.
4. Pursuant to the aforesaid order of this Court dated 16th March, 2007, the learned trial Court examined Surendran s/o Raghavan alias Chidambaran as D.W.1 who exhibited before the learned trial Court a certificate (marked as Exhibit D3) issued by the village officer to the effect that Chidambaran and Surendran are one and the same person and that Chidambaran in that locality was called as Surendran in support of the fact that the aforesaid person examined as D.W.1 was actually Surendran s/o Raghavan who had received the payments in question and had signed the vouchers of such payments.
5. The leaned trial Court by its order dated 31st May, 2007 found that D.W.1 is not a person shown as Surendran and that he never worked in P.W.D. Rest House, Mundakkayam or received wages from the 5 accused appellant or signed in the vouchers. The learned trial has also found that the D.W.1 is not the person whose name appeared in the order passed by the Vigilance Tribunal, Thiruvananthapuram as Surendran s/o Raghavan. The learned trial Court thus by its order dated 31st May, 2007 did not accept the aforesaid evidence and return a finding adverse to the accused appellant.
6. On a fresh consideration of the matter, this Court took the view that the learned trial Court ought to have examined the Village Officer in the proceedings who had issued the certificate Exhibit-D3 before it before arriving at the impugned conclusion. Consequently by order dated 11th October, 2007 this Court once again directed the learned trial Court to examine the Village Officer as a Court Witness and return its findings to this Court. 6
7. Pursuant to the said order of this Court dated 11th October, 2007 the learned trial Court recorded its finding by order dated 18th December, 2007, once again, adverse to the accused appellant and forwarded the same to this Court as directed.
8. The learned trial Court in paragraph 6 of its order dated 18th December, 2007 took the view that Exhibit D3 which was relied upon by the accused appellant and brought on record in the course of the examination of the D.W.1 was not reliable for the reasons recorded in the said paragraph of the order. Paragraph 6 of the said order dated 18th December, 2007 would need to be noticed in some detail and, therefore, is being extracted below:
“6. For the following reasons, I feel that Ext. D3 cannot be relied on. First CW1 7 issued Ext.D3 only on the basis of the statement of two neighbours. Ext. X1 is the enquiry report of CW1. The statements of those witnesses are seen in Ext.X1. But even those witnesses did not state that DW1 used to be called as Parayil Surendran. Therefore, it cannot be said that CW1 conducted enquiry properly before issuing Ext. D3.
Secondly, there are no documents to show that DW1 used to be called as Parayil Surendran. Lastly, it is difficult to believe that anybody would sign in voucher or receipt showing his alias name only without showing his real name. For all these reasons, I hold that Ext. D3 cannot be relied on and that DW1 is not the person who signed as Parayil Surendran in Exts.P17 and P17(a) to P17(e).
In the result, I find that Ext.D3 cannot be relied on and that DW1 whose name now appears in the Order passed by Vigilance Tribunal, Thiruvananthapuram is not the person to whom wages have been allegedly paid by the accused.”
9. We have considered the matter. We have also taken note of the arguments advanced on behalf of the appellant who 8 contends, even at this stage of the proceedings, that the burden of proof was wrongly cast on the accused appellant.
10. In this regard, we may take specific notice of the stand taken by the accused appellant in his examination under Section 313 Cr.P.C. which is to the effect that P.W.7 was not the right person to have been examined by the prosecution and that apart from P.W.7 there was another Surendran who had actually received the wages in question.
11. The stand taken by the accused in his statement under Section 313 Cr.P.C. really obliged him to establish the same which he sought to do by the second and third round of examination of witness ordered by this Court. Insofar as D.W.1 Surendran s/o Raghavan who was projected by the accused appellant to be the person who received the wages in question is concerned 9 the finding of the learned trial Court is in the negative and in this regard the certificate issued by the Village Officer was found to be untenable and unacceptable. The reasons therefor were recorded in paragraph 6 of the order of the learned trial court dated 18th December, 2007, extracted above.
12. We have considered the said grounds and we have noticed that the learned trial Court has taken the view that the conclusion recorded in Exhibit D3 on which the accused appellant seeks to place reliance was hastily arrived at and upon an inadequate consideration of the matter inasmuch as only two neighbours/witnesses were examined who also did not depose before the Court that D.W.1 used to be called as Parayil Surendran. (Payment vouchers were in the name of Parayil Surendran.) 10
13. In the light of what we have noticed and what has been stated above, we find no room to disagree with the eventual conclusion reached by the learned trial Court on a remand of the matter by this Court on two different occasions by order dated 16th March, 2007 and 11th October, 2007. We, therefore, find no infirmity in the conclusion recorded by the learned trial Court holding the accused appellant to be guilty of the offence under Section 13(1)(c) and (d) read with Section 13(2) of the P.C. Act. The conviction of the accused appellant, therefore, is sustained.
14. However, taking into account the long period of time that has elapsed and the age of the accused appellant who is stated to about 70 years we are of the view that the ends of justice would be met if we reduce the sentence of imprisonment to a 11 period of one year rigorous imprisonment in modification of the sentence of two years rigorous imprisonment imposed by the High Court and the sentence of fine to Rs.5,000/- in default to undergo sentence of simple imprisonment of one month. We also direct that the appellant shall be entitled to the benefit of set off the period of custody already suffered by him. The accused appellant shall surrender forthwith to serve out the remaining part of the sentence imposed in terms of the present order.
15. With the aforesaid modification of the sentence the appeal is dismissed.
....................,J.
(RANJAN GOGOI) ...................,J.
(L. NAGESWARA RAO) ...................,J.
(NAVIN SINHA)
NEW DELHI
AUGUST 01, 2017
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ITEM NO.101 COURT NO.4 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 1569/2011
P.N. SUKUMARAN APPELLANT(S)
VERSUS
STATE OF KERALA RESPONDENT(S)
Date : 01-08-2017 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE L. NAGESWARA RAO HON'BLE MR. JUSTICE NAVIN SINHA For Appellant(s) Mr. Naveen R. Nath, AOR Mrs. Lalit Mohini Bhat, Adv. Mr. Anuj Kapoor, Adv.
For Respondent(s) Mr. C. K. Sasi, AOR UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI]
AR-cum-PS BRANCH OFFICER
[SIGNED ORDER IS PLACED ON THE FILE]