Full Judgment Text
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CASE NO.:
Appeal (crl.) 495 of 2004
PETITIONER:
K.R. Purushothaman
RESPONDENT:
State of Kerala
DATE OF JUDGMENT: 25/10/2005
BENCH:
H.K. Sema & P.P. Naolekar
JUDGMENT:
JUDGMENT
P.P. NAOLEKAR, J.
This appeal has been filed against the common judgment of the Kerala High
Court where the appeal of appellant (A-2) against his conviction was
dismissed. A-2 was the Asstt. Commissioner of Tripunithura group of the
Cochin Devaswom Board and convicted by the common judgment passed by the
Enquiry Commissioner and Special Judge, Thrissur appointed under the
Prevention of Corruption Act, 1988 (hereinafter referred to as Act) along
with A-3 (T.S. Rajan) who was the Devaswom Officer, Chottanikkara Devaswom.
The trial court acquitted two other accused persons, A-1 (V. Unnikrishna
Menon), who was Devaswom Commissioner, Cochin Devaswom Board and A-4 (V.G.
Purushothaman Achari), the artisan/goldsmith/craftsman, who was appointed
on 20.7.87 to make the Golaka. All these accused had been tried for
offences punishable under Sections 13(1)(c) and (d) read with Section 13(2)
of the Prevention of Corruption Act, 1988 and Sections 409, 477-A and 120-B
of the Indian Penal Code, 1860 (hereinafter I.P.C.) on the allegation that
they had misappropriated the gold utilized for making a Golaka for Mekkavu
Bhagavathy of Chottanikkara Temple.
The appellant was convicted for R.I. for two years and a fine of Rs. 10,000
and R.I. for two years and a fine of Rs. 5000 and in default R.I. for three
months under Sections 13(1) (c) and (d) of the Act respectively, along with
Section 13(2) and R.I. of one year under Sections 403 IPC and 477-A I.P.C.,
each. No separate sentence was awarded under Section 120B of the IPC.
The prosecution case, in brief, is that Chottanikkara Bhagvathy Temple at
Chottanikkara is administered by Cochin Devaswom Board. Ornament "Golaka"
was used in the temple on certain special ceremonial occasions and the
other "Golaka" was used day-to-day. The Temple Board found that Golaka,
which was being used throughout the year, was rendered unfit for adorning
the deity and, therefore, a division was taken by the Board on 13.4.82 to
make a new Golaka and for the said purpose, sanction was accorded to use 3
Kg. and 499 Gm. of gold from the gold stock available with the Devaswom.
The Devaswom had received back a large quantity of gold, which had been
invested in gold bonds, from the Government and it was in their custody.
Out of that, aforesaid quantity of gold was to be used for the purposes of
making the ornament. It was subsequently found that 3.499 Kg. was not
sufficient and, therefore, the Devaswom Board by its order dated 4.9.86
granted permission to utilize 1.5 Kg. of gold more from the Nadavaravu
(offerings in the form of ornaments and gold coins by devotees), by
converting them into bars and sheets. In pursuance of the order, additional
quantity of 1 Kg. of gold consisting of 150 pieces of gold jewellery and
coins, was entrusted to A-3, who died during the pendency of the
proceedings. The Board had asked for the quotations to prepare the ornament
and the work was ultimately entrusted to the 4th accused by the Devaswom
Board on 20.7.87. As per the quotation the wastage in making the ornament
was 10 Gm. of the gold for 1 Kg. By order dated 20.2.87 (Ex.2b) the work of
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making the Golaka was directed to be supervised by the Assistant
Commissioner of the Tripunithura group, K.S. Chakrapani Marar, J.S., D.Cs
Office., T.S. Rajan Devaswom Officer, and other officials. The gold
weighing 3.499 Kg., taken from the gold bond, was taken to Madras for
converting into the gold sheets. The purity was tested at Elite Jwellery,
Thrissur, to be 99.5%. This gold was converted into gold sheets and they
were cut, and a portion having weight 2.469 Kg. was entrusted to A-3. The
balance of gold sheet, i.e., 1.030 Kg. along with 1 kg. of gold from
offerings (Nadavaravu) was converted into two gold bars. These two bars
were later on converted into gold sheets. The gold sheets were used to make
different portions of the body of Golaka. After cutting these sheets to the
required size, the pieces left from the sheet, weighing 1.147 Kg., and the
bits of gold weighing 13 Gm. were again melted to be converted into gold
bars, weighing 1.149 Kg. This was done before the accused joined as
Assistant Commissioner.
A-2 joined duty as Asstt. Commissioner of the Devaswom Board on 1/2-5-1988.
On 10.9.88 the gold bar was taken by accused - appellant, along with A-3
and A-4 to A.K.A. Metals at Irinjalakuda for converting the same into gold
sheets. But when the attempt was made to convert the bars into sheets,
cracks appeared on the side of the bar due to impurity of the gold. On
15.9.88, the accused-appellant had sent a report to the Board and sought
permission to take the gold bar to Coimbatore and vide resolution dated
20.9.88, the Board authorized A-3 to take the gold bar to Coimbatore for
converting it into gold sheets and accordingly the gold bar was taken to
Coimbatore.
When the gold bar was melted for converting it into sheets, the quantity of
pure gold was found to be only 919.500 Gm. of copper was added to it in
order to conform the same to the prescribed Government standard, and the
gold was converted into gold sheets, and these sheets were used for making
the two hands of the Golaka, wires, pinheads, nails, and for soldering
purposes. While making the Golaka the gold was several times melted and
converted into bars and, thereafter, to sheets. The total weight of the
gold utilized for making the Golaka was 4.499 Kg. which included the gold
supplied from 150 pieces of ornaments and coins. After completion of the
work, it was found that the weight of the ornament Golaka was 4.209 kg.
Since 42 Gm. of copper was used for making the Golaka, the total wastage
assessed as 332 Gm. A-1, the Commissioner made certain inquiries about the
loss of gold during the process of making the ornament Golaka from some
dealers at Thrissur, and was convinced that there was a possibility of
wastage occurring (a) 50 Milligrams per 1 Kg. and since the gold had been
several times melted and converted into bars and sheets, felt that wastage
of 332 Gm. was quity reasonable and, accordingly sent a report to the
Devaswom Board, which was approved and accepted by the Board.
Later on, the Local Fund Audit, audited the accounts of the Devaswom Board
and submitted reports before the High Court of Kerala. The first report
dealt with details of loss of gold sustained, to the illegalities in the
work, and it was pointed out that wastage of 332 Gm. of gold was un-
reasonable; whereas the second report had named the persons responsible for
the loss.
Chargesheet was filed against A1 - the Commissioner, Devaswom Board; A-2
Astt. Commissioner, Devaswom Board; A-3 Officer of the Devaswom Board; and
A-4 the maker of the Golaka. The trial court acquitted A-1 and A-4, but
convicted A-2 along with A-3, who died during the proceedings.
The appeal was taken to the High Court by A-2. The High Court, while
considering the case of A-2, recorded a finding that though there was
nothing which indicated that the accused-appellant was a party to the
attempts of melting the gold at Chottanikkara and Tripunithura, yet it is
possible to conclude that he knew about it. It has been inferred by the
High Court that gold when was carried to Irinjalakuda for the purpose of
converting the gold bars into sheets where it was revealed that the gold
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was impure and it was not possible to convert the same into gold sheets,
A-2 had not raised any objections against the same.
The High Court has found A-2 guilty only on the basis that he has conspired
with A-3 dishonestly or fraudulently, to misappropriate the pure gold.
The conviction of the appellant is based on the conspiracy which is alleged
to have been entered into between the appellant and accused No. 3. We shall
advert to the law of conspiracy, with its definition, the essential
features and required proof.
Section 120A of I.P.C. defines ‘criminal conspiracy.’ According to this
Section when two or more persons agree to do, or cause to be done (i) an
illegal act, or (ii) an act which is not illegal by illegal means, such an
agreement is designed a criminal conspiracy. In Major EG Barsay v. State of
Bombay, AIR (1961) SC 1762, Subba Rao J., speaking for the Court has said:
"The gist of the offence is an agreement to break the law. The parties to
such an agreement will be guilty of criminal conspiracy, though the illegal
act agreed to be done has not been done. So too, it is not an ingredient of
the offence that all the parties should agree to do a single illegal act.
It may comprise the commission of a number of acts."
In State through Superintendent of Police, CBI/SIT v. Nalini and Ors., JT
(1999) 4 SC 106 it is observed by SSM Quadri J. at paragraph 677:
"In reaching the stage of meeting of minds, two or more persons share
information about doing an illegal act or a legal act by illegal means.
This is the first stage where each is said to have knowledge of a plan for
committing an illegal act or a legal act by illegal means. Among those
sharing the information some or all may form an intention to do an illegal
act or a legal act by illegal means. Those who do form the requisite
intention would be parties to the agreement and would be conspirators but
those who drop out cannot be roped in as collaborators on the basis of mere
knowledge unless they commit acts or omissions from which a guilty common
intention can be inferred. It is not necessary that all the conspirators
should participate from the inception to the end of the conspiracy; some
may join the conspiracy after the time when such intention was first
entertained by any one of them and some others may quit from the
conspiracy. All of them cannot but be treated as conspirators. Where in
pursuance of the agreement the conspirators commit offences individually or
adopt illegal means to do a legal act which has a nexus to the object of
conspiracy, all of them will be liable for such offences even if some of
them have not actively participated in the commission of those offences."
To constitute a conspiracy, meeting of mind of two or more persons for
doing an illegal act or an act by illegal means is the first and primary
condition and it is not necessary that all the conspirators must know each
and every detail of conspiracy. Neither it is necessary that every one of
the conspirators takes active part in the commission of each and every
conspiratorial acts. The agreement amongst the conspirators can be inferred
by necessary implications. In most of the cases, the conspiracies are
proved by the circumstantial evidence, as the conspiracy is seldom an open
affair. The existence of conspiracy and its objects are usually deducted
from the circumstances of the case and the conduct of the accused involved
in the conspiracy. While appreciating the evidence of the conspiracy, it is
incumbent on the Court to keep in mind the well-known rule governing
circumstantial evidence viz., each and every incriminating circumstance
must be clearly established by reliable evidence and the circumstances
proved must form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn, and no other
hypothesis against the guilt is possible. The criminal conspiracy is an
independent offence in Indian Penal Code. The unlawful agreement is sine
quo non for constituting offence under Indian Penal Code and not an
accomplishment. Conspiracy consists of the scheme or adjustment between two
or more persons which may be express or implied or partly express and
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partly implied. Mere knowledge, even discussion, of the Plan would not per
se constitute conspiracy. The offence of conspiracy shall continue till the
termination of agreement.
The suspicion can not take the place of a legal proof and prosecution would
be required to prove each and every circumstance in the chain of
circumstances so as to complete the chain. It is true that in most of the
cases, it is not possible to prove the agreement between the conspirators
by direct evidence but the same can be inferred from the circumstances
giving rise to conclusive or irresistible inference of an agreement between
two or more persons to commit an offence. It is held in Noor Mohd. v. State
of Maharashtra, AIR (1971) SC 885, that:
". in most cases proof of conspiracy is largely inferential though the
inference must be founded on solid facts. Surrounding circumstances and
antecedent and subsequent conduct, among other factors constitute relevant
material."
It is cumulative effect of the proved circumstances which should be taken
into account in determining the guilt of the accused. Of-course, each one
of the circumstance should be proved beyond reasonable doubt. The acts or
conduct of the parties must be conscious and clear enough to infer their
concurrence as to the common design and its execution. While speaking for
the Bench it is held by P. Venkaratama Reddy J. in State (NCT of Delhi) v.
Navjot Sandhu (a) Afsan Guru, JT (2005) 7 SC 1, (P. 63) as follows:
"We do not think that the theory of agency can be extended thus far, that
is to say, to find all the conspirators guilty of the actual offences
committed in execution of the common design even if such offences were
ultimately committed by some of them, without the participation of others.
We are of the view that those who committed the offences pursuant to the
conspiracy by indulging in various overt acts will be individually liable
for those offences in addition to being liable for criminal conspiracy;
but, the non-participant conspirator cannot be found guilty of the offence
or offences committed by the other conspirators. There is hardly any scope
for the application of the principle of agency in order to find the
conspirators guilty of a substantive offence not committed by them.
Criminal offences and punishments therefore are governed by statute. The
offencer will be liable only if he comes within the plain terms of the
penal statute. Criminal liability for an offence cannot be fastened by way
of analogy or by extension of a common law principle."
We shall now proceed to examine the evidence placed on record and reasoning
adopted by the High Court for finding the accused/appellant guilty of the
offence of conspiracy on the basis of the principle laid down by this Court
in various authorities.
The High Court completely missed the fact that on 15.9.88, immediately
after it was noticed that the gold was impure and it could not be converted
into sheets, A-2 had sent a report to the Board, sought permission of the
Board to take the gold to Coimbatore. It can very safely be presumed that
when the gold was required to be taken to Coimbatore, the matter must have
been reported to the Board that the gold was impure and the same was
required to be taken to Coimbatore. High Court has also failed to notice
that when the gold sheet was converted into gold bar, before the accused-
appellant joined the Board, it weighed 1.149 Kg. and when this gold bar was
melted, after the accused-appellant had joined duty, the gold was found
only to be 919.500 Gm. Thus, before the accused-appellant joined as Asst.
Commissioner, there was a shortage of 230 Gm. of the gold in the gold bar
prepared, which was detected when it was converted into gold sheet.
Shortage of pure gold was on account of impurity in the gold bar which was
prepared when the accused-appellant had not even joined the services of the
Board. The High Court has also recorded a finding in paragraph 21 onwards
of the judgment that the bond gold weighing 2.469 Kg. and Nadavaravu
(offerings) of 1 Kg. of gold was handed over to A-3, which was in the form
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of ornaments and coins. The purity of bond gold was ascertained and
certified in Exh.P.1 but the purity of the Nadavaravu, was not ascertained
at all and no satisfactory explanation, whatsoever, is offered by any
witness or the prosecution as to how and why 1 Kg. of gold was handed over
to A-3 and permitted to be used in making the Golaka without ascertaining
its purity, as was done in the case of bond gold. The High Court further
held that the entire gold was kept in the double locker system under the
control of A-3 at Chottanikkara and A-3 was keeping both the keys of the
double locker with him. There is convincing evidence to show that the
entire gold was kept in the exclusive custody of A-3. A-3 used to release
the gold necessary for making of Golaka every morning and used to keep them
back by the end of the day and the craftsman A-4 was dealing with the gold
everyday. The above finding of the High Court clearly establishes that it
was A-3 who was entrusted with the entire gold and he was keeping the
custody of the same. A-2 had nothing to do with it, except he being the
Asstt. Commissioner of the Devaswom Board, Cochin. He was overall in-charge
of the work carried on at Chottanikkara, along with the other duties which
he was required to perform in the other shrines, which were coming under
his jurisdiction. The High Court has also failed to notice after recording
the finding, that 1 Kg. of gold of the Nadavaravu which was mixed up with
pure bond gold, the purity was not assessed and it cannot be said with
certainty that pure gold delivered was 4.499 Kg., to ascertain the loss of
pure, gold, for which the accused persons were charged. It is a matter of
common knowledge that ornaments contain and require mixing of other metals
in gold, and when the gold ornaments weighing about 1 Kg. were given, it
can safely be assumed that they contained, along with gold, impurities of
other metals, and thus was not 1 Kg. of pure gold.
From the findings arrived at by the High Court that it was A-3 who was
entrusted with the gold by the Devaswom Board, and who was looking after
the affairs of making the ornament Golaka, simply because accused-appellant
had accompanied him to Coimbatore, it cannot be inferred that there was an
agreement entered into between them to misappropriate the gold. To
constitute a conspiracy, agreement between two or more persons for doing an
illegal act, or an act by illegal means, is a sine qua non. Although the
agreement among the conspirators can be inferred by necessary implication,
the inference can only be drawn on the parameters in the manner of proved
facts, in the nature of circumstantial evidence. Whatever be the
incriminating circumstance, it must be clearly established by reliable
evidence and they must form the full chain whereby a conclusion about the
guilt of the accused can be safely drawn. Even if we hold that at some
point of time, the accused-appellant had some knowledge or suspicion about
A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in
the absence of some positive evidence indicating agreement to that effect,
conspiracy could not be inferred. On the findings itself arrived at by the
High Court, we cannot hold that the accused-appellant was the conspirator
to misappropriate the gold, with A-3.
On scrutiny of the entire facts led by the prosecution, the charge of
conspiracy cannot stand as there is no link to show that the conspirators
agreed to misappropriate the gold while the gold ornament was being
prepared.
The accused-appellant was convicted under Sections 13(1)(c) and (d) of the
Prevention of Corruption Act, 1988. To constitute an offence under clause
(c) of Section 13(1) of the Act, it is necessary for the prosecution to
prove that the accused has dishonestly or fraudulently misappropriated any
property entrusted to him or under his control as a public servant or
allows any other person to do so or converts that property for his own use.
The entrustment of the property or the control of the property is a
necessary ingredient of Section 13(1)(c). On the findings arrived at by the
High Court, it is obvious that the property was neither entrusted nor was
under the control of the accused-appellant and thus the accused-appellant
could not have been convicted under the Section.
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To attract the provisions of Section 13(1)(d) of the Prevention of
Corruption Act, public servant should obtain for himself or for any other
person any valuable thing or pecuniary advantage by corrupt or illegal
means or by abusing his position as a public servant. Therefore, for
convicting a person under the provisions of Section 13(1)(d) of the
Prevention of Corruption Act 1988, there must be evidence on record that
the accused has obtained for himself or for any other person, any valuable
thing or pecuniary advantage by corrupt or illegal means or by abusing his
position as a public servant obtained for himself, or for any person, or
obtain for any person, any valuable thing, or pecuniary advantage without
any public interest. What we find in the present case is that there is no
evidence on record to prove these facts that the accused-appellant had
obtained for himself or for any other person any valuable thing or
pecuniary advantage. We may clarify that the charge of conspiracy being not
proved under Section 120B I.P.C., the accused appellant could not be held
responsible for the act done by A-3. The prosecution has failed to prove
that he has obtained for himself or for any other person any valuable thing
or pecuniary advantage. Similarly, we do not find any evidence on record to
convict accused-appellant under Sections 403, 477-A I.P.C.
For the reasons aforesaid, the appeal is allowed. The judgment of the High
Court is set aside.