Full Judgment Text
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CASE NO.:
Appeal (crl.) 1542 of 2007
PETITIONER:
Radha Pisharassiar Amma
RESPONDENT:
State of Kerala
DATE OF JUDGMENT: 14/11/2007
BENCH:
H.K. SEMA & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1542 OF 2007
(Arising out of Special Leave Petition (Crl.) No. 5705 of 2005)
WITH
Crl. Appeal Nos. 1543, 1544, 1545, 1546 and 1547 of 2007
(Arising out of SLP(Crl.) Nos. 5744/2005, 5858/2005,
4683/2006, 4687/2006 and 4684/2006)
H.K.SEMA,J.
1. Leave granted.
2. These Appeals are directed against the judgment
and order dated 10th August, 2005 by the High Court of Kerala
in Criminal Appeals. The Appeals arising out of SLP(Crl.) Nos.
5705/2005, 5744/2005 and 5858/2005 are preferred by
accused Nos. 4 to 7. The Appeals arising out of SLP(Crl.) Nos.
4683/2006, 4687/2006 and 4684/2006 are preferred by the
State.
3. Accused Nos. 1 to 10 were charged with the offence
under Sections 409, 468, 471, 477-A and 120-B, Indian Penal
Code. The accused were also charged under Section 13(1)(c)
read with Section 13(2) of Prevention of Corruption Act, 1988
(in short ‘the Act’). They were convicted by the Trial Court
and Appeals were confirmed by the High Court. The allegation
against them are that they have encashed the T.A. Bills for an
amount of Rs.51,24,500/-, the amount funded for the Indian
Population Project (I.P.P.), Idukki on the basis of fake
allotment letters, preparing false acquittal rolls and made false
entries in the books and receipts and misappropriated a sum
of Rs.50,07,405/- and in furtherance to the criminal
conspiracy with the dishonest intentions, fraudulently
misappropriated the said sum and thereby committed criminal
breach of trust, falsification of acts of forgery for the purpose
of cheating and knowingly used forged documents as genuine
and thereby committed the offence punishable under the
aforesaid sections.
4. At the relevant time, A-1 was working as Medical
Officer at the Primary Health Centre, Chithirapuram. A-2 was
Head Clerk. A-3 (deceased) was working as Health Inspector.
A-4 and A-5 were working as Sub Treasury Officer, Devikulam.
A-6 was working as Junior Superintendent. A-7 was working
as Junior Accountant. A-8 was working as L.D. Clerk at the
Primary Health Centre, Chithirapuram. A-9 was working as
U.D. Clerk in I.P.P., Idukki and A-10 (since deceased) was
working as Project Officer, I.P.P., Idukki.
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5. At this stage, it will be relevant to mention that A-1
\026 Medical Officer and A-10 Project Officer committed suicide
during the trial. A-3 expired prior to the trial. This Court
dismissed the appeal of A-2, who was working as Head Clerk.
A-8 was working as L.D. Clerk at the Primary Health Centre,
Chithirapuram. This Court also dismissed the Appeal of A-9
who was working as U.D. Clerk in I.P.P., Idukki.
6. By the impugned order, the High Court convicted A-4 to
A-7 under Section 13(1)(c) read with Section 13(2) of the Act
and sentenced them to undergo R.I. for two years each and
pay a fine of Rs. 50,000/- each, if default in payment of fine,
they were directed to undergo Simple Imprisonment for a
period of six months each. The High Court found A-4 to A-7
not guilty under Section 409, 468, 471, 477-A and 120-B,
I.P.C. and accordingly their convictions under aforesaid
Sections of law were set aside.
7. While issuing a notice on 28.11.2005, this Court
also issued notice as to why A-4 to A-7 should not be
convicted under Section 409, 468, 471, 477-A and 120-B,
I.P.C., apart from conviction under Section 13(1)(c) read with
Section 13(2) of the Act. The accused were also admitted to
bail on their executing a bond of Rs.10,000/- each in the like
amount with two solvent sureties to the satisfaction of the
Trial Court. All the accused are on bail.
8. We have heard the learned counsels appearing on
behalf of the parties at great length.
9. Section 409 deals with criminal breach of trust by
public servants. Section 468 deals with forgery for the
purpose of cheating. Section 471 deals with using forged
documents as genuine. Section 477-A deals with falsification
of accounts and Section 120-B deals with punishment for
criminal conspiracy.
10. The principal contention of the learned counsel for
the appellants is that there is no iota of evidence against the
accused for the offences under the aforesaid sections of law.
In other words, it is urged that none of ingredients of the
aforesaid sections of law are established against the accused
by the prosecution and, therefore, the accused are entitled to
be acquitted and there is no infirmity in the order passed by
the High Court acquitting A-4 to A-7 under Sections 409, 468,
471, 477-A and 120-B, I.P.C. and no interference is warranted
by this Court.
11. The conviction of accused Nos. 4 to 7 recorded by
the High Court under Section 13(1)(c) read with Section 13(2)
of the Act, it is urged, is not at all warranted inasmuch as
there is no evidence that the accused dishonestly or
fraudulently misappropriated or otherwise converted any
property entrusted to them or under their control as public
servants or allowed any other person to do so. It is further
contended that the property was not at all entrusted to A-4 to
A-7 under their control and there is no question of the
accused being dishonestly or fraudulently misappropriated it
or otherwise allowed any other person to do so.
12. Per contra, learned counsel for the State contended
that for an offence under Section 120-B, direct evidence is
seldom available and, therefore, having regard to the
surrounding circumstances, A-4 to A-7 committed criminal
conspiracy and they are guilty under Section 120-B and also
under Sections 409, 468, 471, 477-A, I.P.C. and Section
13(1)(c) read with Section 13(2) of Act.
13. To answer this question, it may be necessary to
refer to the various documents examined by the Trial Court,
High Court and also placed before us. First, we shall deal with
the offence of conspiracy. As contended by the State Counsel
that the original sanction order at 590 (Exhibit P26a), the
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expenditure under head ‘TA’ is only Rs.50,000/- for the fiscal
year 1990-91. However, the alleged forged allotment order
dated 22.8.1990 for the year 1990-91 shown under head ‘TA’
is Rs. 1,70,000/-. It is accordingly urged that the aforesaid
sanction allotment letter has been forged by A-4 to A-7 in
conspiracy with the other accused and they are liable for
punishment under Section 120-B.
14. After going through the entire documents and
evidence and arguments advanced by both sides, we are
unable to countenance with the contention of the State. The
original allotment letter dated 8.5.1990 (Exhibit P26a) reveals
that a copy thereof has been endorsed to Sub Treasury Officer,
Idukki. There is no endorsement of the copy of the said
allotment order to the Sub Treasury Officer, Devikulam in
which A-4 to A-7 were working in their respective posts. In
this connection, the prosecution has examined its star witness
Mr. Selvaraj as PW-5. This witness has stated that from
1984 to 1993 he was posted as U.D.C. at Health Centre
Directorate at Trivandrum. He has further stated that he has
worked at I.P.P. He identified the allotment register at I.P.P.
Office (marked Exhibit P-25). He has stated that Idukki I.P.P.
received Rs.50,000/- under head ’T.A.’ for 1991. He further
stated that the original allotment letter (Exhibit P26a) is sent
to Sub Treasury by Painavu Idukki and duplicate to the
Project Officer, I.P.P., Idukki. He did not state that the original
allotment letter (Exhibit P26a) under head ’TA’ has also been
sent to Sub Treasury Officer, Devikulam. He has not stated
that a copy of the original allotment letter (marked Exhibit
P26a) was sent to any other Treasury Officer.
15. From the evidence of PW-5, it can be revealed that a
conspiracy was hatched between A-1, A-10, A-2, A-8 and A-9.
As already noticed, A-4 to A-7 were working as Sub Treasury
Officers at Devikulam. The prosecution has failed to prove
that a copy of the original sanction letter (Exhibit P26a) was
also sent to S.T.O., Devikulam. On the other hand, the alleged
forged allotment letter dated 22.8.1990 (Exhibit P-5) showing
that the amount of Rs.1,70,000/- under the head ‘TA’ was
sent to S.T.O., Devikulam where the accused A-4 to A-7 were
working. It is the specific case of the accused that they did
not receive any allotment order other than the allotment letter
dated 22.8.1990 (Exhibit P-5) showing the allotment of
Rs.1,70,000/- under T.A. to Devikulam Sub Treasury. The
prosecution has miserably failed to establish the essential
ingredients of the conspiracy under Section 120-B of I.P.C. by
leading cogent and convincing evidence against A-4 to A-7.
16. It is by now well-established principle of law that for
the offence under Section 409, 467 and 471, the existence of
mens rea (guilty mind) must be proved. It is on record that the
Respondent Nos. 4 to 7 were working as S.T.Os., Devikulam.
From the prosecution evidence, it appears that the conspiracy
was hatched at Chithirapuram, Primary Health Centre. So far
with regard to the offence under Section 467, I.P.C. is
concerned, there is no evidence to show that the appellants
before us, forged a document which purported to be a valuable
security. There is also no evidence that the appellants had
knowledge of fact that the allotment letter was a forged letter.
Again for an offence under Section 409 it must be proved that
the person entrusted with the property, or any dominion over
property in his capacity as a public servant committed
criminal breach of trust in respect of such property as defined
in Section 405, I.P.C. The evidence must show that he
dishonestly misappropriated or converted to his own use that
property or dishonestly used or dispossessed that property in
violation of any direction of law prescribing the mode in which
such trust is to be discharged. In the present case, there is no
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evidence that A-4 to A-7 dishonestly misappropriated or
converted to their own use the amount of T.A. On record it is
established that A-4 to A-7 are not the beneficiaries of the
misappropriated amount.
17. In the absence of any evidence to show that A-4 to
A-7 were acting in conspiracy with A-1, A-2, A-8, A-9 and A-10
and that A-4 to A-7 have fraudulently and dishonestly
prepared forged bill on the basis of forged allotment letter, the
offences under Sections 467, 471, 477-A or Section 409 are
not proved against the appellants. Consequently, the offence
under the provision of the Prevention of Corruption Act is also
not made out. The trial court was, therefore, not justified to
convict A-4 to A-7 under the aforesaid sections of law.
18. In the result, Appeals filed by Accused Nos. 4 to 7
are hereby allowed. Conviction recorded and sentence
imposed upon A-4 to A-7 by the Trial Court and confirmed by
the High Court under Section 13(1)(c) read with Section 13(2)
are hereby set aside. The Appellants stand acquitted. They
are on bail and their bonds and sureties are discharged.
19. Appeals filed by the State are dismissed. Notice
issued by this Court on 28.11.2005 against A-4 to A-7 shall
stand discharged.