A.M. Rajendran and others v. State of Kerala (Vigilance & Anti-Corruption Bureau)

Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 CRL.A NO. 437 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 39/2001 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD., KOZHIKODE** ## **APPELLANT/S:** 1 A.M.RAJENDRAN FORMERLY SPECIAL TAHSILDAR (RR-I) TALUK OFFICE,, KANNUR. 2 ADDL.APPELLANT KRISHNA LATHIKA, AGED 66 YEARS W/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 3 ADDL.APPELLANT SARIN RAJ, AGED 42 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 4 ADDL.APPELLANT MITHUN RAJ, AGED 40 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 3/2/2021 IN CRL.MA NO.1/2021 IN CRL.A.NO.437/2006. BY ADVS. SRI.M.RAMESH CHANDER BALU TOM Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 2 ## **RESPONDENT/S:** STATE-DEPUTY SUPDT.OF POLICE, VIGILANCE VIGILANCE AND ANTICORRUPTION BUREAU,, KANNUR. BY PUBLIC PROSECUTOR:SRI.A.RAJESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH CRL.A.443/2006, 445/2006 AND CONNECTED CASES, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING: Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 CRL.A NO. 443 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 37/2001 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD., KOZHIKODE** ## **APPELLANT/S:** 1 A.M.RAJENDRAN FORMERLY SPECIAL TAHSILDAR (RR-I) TALUK OFFICE,, KANNUR. 2 ADDL.APPELLANT KRISHNA LATHIKA AGED 66 YEARS W/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 3 ADDL.APPELLANT SARIN RAJ AGED 42 YEARS S/O LATE A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 4 ADDL.APPELLANT MITHUN RAJ AGED 40 YEARS S/O LATE. A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 3.2.2021 IN CRL.MA NO.1/2021 IN CRL.A.NO.443/2006. BY ADVS. SRI.M.RAMESH CHANDER BALU TOM 4 Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 ## **RESPONDENT/S:** STATE – DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTICORRUPTION BUREAU,, KANNUR. BY PUBLIC PROSECUTOR:SRI A RAJESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH CRL.A.437/2006 AND CONNECTED CASES, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING: Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 CRL.A NO. 445 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 38/2001 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD., KOZHIKODE** ## **APPELLANT/S:** 1 A.M.RAJENDRAN FORMERLY SPECIAL TAHSILDAR (RR-I) TALUK OFFICE,, KANNUR. 2 ADDL.APPELLANT KRISHNA LATHIKA AGED 66 YEARS W/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 3 ADDL.APPELLANT SARIN RAJ, AGED 42 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 4 ADDL.APPELLANT MITHUN RAJ, AGED 40 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 3/2/2021 IN CRL.MA 1/2021 IN CRL.A.445/2006. BY ADVS. SRI.M.RAMESH CHANDER BALU TOM Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 6 ## **RESPONDENT/S:** STATE – DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTICORRUPTION BUREAU,, KANNUR. BY PUBLIC PROSECUTOR:SRI A.RAJESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH CRL.A.437/2006 AND CONNECTED CASES, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING: Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 CRL.A NO. 446 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 36/2001 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD., KOZHIKODE** ## **APPELLANT/S:** 1 A.M.RAJENDRAN FORMERLY SPECIAL TAHASILDAR (RR-1), TALUK OFFICE, KANNUR. 2 ADDL.APPELLANT KRISHNA LATHIKA AGED 66 YEARS W/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 3 ADDL.APPELLANT SARIN RAJ AGED 42 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. 4 ADDL.APPELLANT MITHUN RAJ AGED 40 YEARS S/O LATE.A.M.RAJENDRAN, RESIDING AT MYTHRI GRANDEUR NO.304, 1ST CROSS 16TH MAIN, OPP.ST.FRANCIS SCHOOL, HONGA SANDRA, BEGUR ROAD, BANGALORE-560068. ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 3/2/2021 IN CRL.MA 1/2021 IN CRL.A NO.446/2006. BY ADV SRI.M.RAMESH CHANDER Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 8 BALU TOM ## **RESPONDENT/S:** 1 STATE DY-SUPDT OF POLICE, VIGILANCE POLICE, VIGILANCE AND ANTICORRUPTION, BUREAU, KANNUR, REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR:SRI A.RAJESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH CRL.A.437/2006 AND CONNECTED CASES, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING: Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 9 ## **COMMON JUDGMENT** The sole accused who is common in C.C.No.39 of 2001, 37 of 2001, 38 of 2001 and 36 of 2001 of the Enquiry Commissioner and Special Judge, Kozhikode, aggrieved by the conviction and sentence imposed on him has filed these four criminal appeals. The appellant is common in all the above appeals. 2. The allegation of the prosecution is that the petitioner herein, being a public servant while working, as the special Tahsildar (RR1) in the Taluk Office, Kannur during the period 01.01.1997 to 08.09.1997, committed breach of trust and criminal misconduct, abused his official position as a public servant and by corrupt and illegal means, dishonestly and fraudulently misappropriated various sums received by him in his capacity as the Tahsildar. According to the prosecution, during the said period, huge sums collected by the accused through the process of revenue recovery was credited in the cash book and other documents and after misappropriation of the amount, falsified the accounts and only a nominal portion of the amount so collected was remitted in the Government account. The remaining amount was misappropriated by him. The allegation in all the above crimes is similar, though the amounts collected from each of the proceeding and the amount so misappropriated by him differ. The prosecution further alleged that, for the purpose of Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 10 misappropriation, he forged and falsified the accounts, registers, documents and thereby obtained undue pecuniary advantage to himself and wrongful gain to the Government and thereby committed offence punishable under section 13(2) r/w 13(1)(c) of the Prevention of Corruption Act 1988 and Sections 409, 420, 468 and 477 IPC. 3. Pending appeal, the sole accused died and his legal heirs got themselves impleaded by filing separate interlocutory applications by each of the accused. Those applications were allowed and additional appellants who are the wife and children of the original accused were permitted to prosecute the appeals. They contested the proceedings as additional appellants 2 to 4 in the above appeals. Heard Adv.Balu Tom, learned counsel for the appellants and Sri.A.Rajesh the Special Government Pleader for Vigilance. Examined the records. 4. The prosecution, to specifically establish the allegations relied on PWs1 to 15 and Exts.P1 to P56 documents which were adduced before the Special court. Exts.P1 to P3 are the cash books kept in the Taluk Office Kannur. It was proved through PW1, the Tahsildar of Kannur Taluk Office. Exts.P4 to P6 were the TR file receipts proved by PW4 the Deputy Tahasildar of the same Taluk Office. According to him, he knew the signature of the accused and Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 11 his handwriting. Exts.P9 to P11 were the documents which carried the signature of the first accused, according to PW1. Ext.P10(a) and P11(a) were the counter foils of Exts.P9 and P11, which were the original receipts. According to the prosecution, on receipt of the money recovered through the process of revenue recovery, originals of TR receipts were issued to the party and duplicate copies were maintained in the office. They were received by the accused and subsequently entries were made in the cash book, register and various other documents. Cash book and other relevant registers were kept in the office under the direct supervision and control of the Tahsildar and Junior Superintendent. It was also brought on record that the amount was credited in the Government account on a daily basis. Accordingly, the allegation of the prosecution that, after received the substantial amount by issuing receipt, he misappropriated a substantial part of it and credited only a nominal portion of those amount. Corresponding falsification of accounts, registers and ledgers were made by him to ensure that the misappropriation were not brought to the notice of the other staffs. 5. On verification of the revenue recovery ledger by the Tahsildar Kannur, a huge amount was seen misappropriated by the accused. Therefore he lodged a complaint before the Town Police Station, Kannur and on the basis of the complaint, Crime No. 604 of Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 12 1997 of Kannur Police Station under section 409 and 420 IPC was registered against the accused. Investigation was later transferred to the vigilance and after completing the investigation, FIR of Crime No.1 of 1998 of Vigilance and Anti-Corruption Bureau, Kannur was registered by the then DySP. Investigation was taken over by PW15, who questioned the witness and seized the documents and completed the investigation. He laid the final report. CW38 was the then DySP of the Vigilance Unit Kannur. He laid four charges against the accused. Each charge laid by CW38 was for offence punishable under section 13(2) r/w 13(1)(c) of the Prevention of Corruption Act and 409, 420, 468 and 477A IPC. The case was jointly tried and by common judgment found the accused guilty, convicted and sentenced to undergo various periods of imprisonment in each of the case. 6. To substantiate the allegation of the prosecution, the prosecution has essentially relied on, apart from the documentary evidence, the oral testimony of PW1 who was the Tahsildar of Taluk Office, PW3, who was a Village Officer, PW4, the Deputy Tahsildar of Taluk Office, Kannur during the said period and PW7, the Village Officer of Kannur for the above period and PW11 the UD clerk in B section of the Taluk Office. The evidence of the above witnesses uniformly suggested that the accused had collected huge amounts received by revenue recovery proceeding and after putting false Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 13 entires, misappropriated substantial amount and remitted only a nominal amount in the treasury. According to PW4, he could identify the signatures of the accused and the entries in the handwriting of the accused in Exts.P10(a) and P9(a) and P9(b). He gave evidence regarding the amounts received, evidenced by counter foils of the receipts, deposit made in the common treasury and reiterated that, substantial amount so collected was misappropriated by the accused. He also stated that the accounts were falsified. 7. Vehemently challenging the prosecution allegation, learned counsel for the appellant contended that the prosecution thoroughly failed in establishing the allegation against the accused. It was contended that the allegation of receipt of huge amount was false and the accused had deposited in the treasury the entire amount which he had received. It was also stated that, there was no evidence to establish the handwriting and the signature of the accused, except the oral testimony of PW11, who had no occasion to see the handwriting and the signature of the accused. It was also contended that regarding the falsification of accounts, there was no reliable evidence. PW4, who also stated that, he knew the handwriting and signature of the accused as well that of PW4, had no occasion to see the signature. Though the handwriting expert had given a report and opinion which was sought, the handwriting expert was not examined. Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 14 In short, there was absolute lack of evidence regarding the handwriting of the accused. Hence, the allegation of falsification of accounts could not be established by cogent evidence, it was contended. It was further contended by the learned counsel for the petitioner that the crucial witness, who was the first informant, was not examined and the complaint laid by him which formed in the genesis of the investigation was not properly recorded. Registration of FIR was not properly established in the above sense and hence the non examination of the first informant who had occasion to initially arrive at a conclusion that there was misappropriation of huge amounts was fatal to the prosecution case. It was also contended that, regarding the actual amount received by the accused, there was no consistent and cogent evidence. Yet another contention set up by the learned counsel for the petitioner that the officer who had sanctioned the prosecution was not examined and the prosecution was without any valid sanction. There was nothing to show that the authority had properly exercised its jurisdiction. The sanctioning authority was not examined at all. It was also contended that CW26 and CW28 who are stated to be the crucial witnesses and the Junior Superintendent who had direct knowledge regarding various documents, were not examined. Non examination of the above crucial witnesses was fatal, it was contended. Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 15 8. Exts.P53 to P56 are the sanction orders issued by the Commissioner of Land Revenue, Government of Kerala. Evidently, the sanctioning officer was not examined. It seems that, orders were marked through PW15, the investigation officer. Relying on it, learned counsel for the accused contended that, it has been held by this Court in **Prakash Pai v. State of Kerala (2015(3) KLT 989),** that marking of sanction order through the investigation officer, who had no knowledge regarding the sanction order was not proper. It was held that, independent application of mind and consequent satisfaction arrived at, for granting sanction under Sec.19 of Prevention of Corruption Act, are matters which could be proved only by the sanctioning authority and nobody else. When application of mind in the process of granting sanction itself is an issue, somebody cannot cause and prove the sanction. In the case at hand, the sanction order was proved through the investigation officer, who cannot be competent to depose about the application of mind. Hence, lack of evidence whether there was any application of mind was fatal to the prosecution. 9. To counter this argument, learned Special Government Pleader relied on the decision reported in **State of MP v. Jiyalal (AIR 2010 SC 1451).** Referring to the sanction of prosecution, it was held that a mere finding that sanction for prosecution was Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 16 mechanically granted was not sufficient to set aside a conviction arrived at by the court below. It was held that, there should be sufficient evidence to show that serious prejudice has been caused to the accused thereby. In the case at hand, there is nothing on record to show that any prejudice was caused. However, in that case also the sanctioning authority was not examined. However, challenge was only on the ground that sanctioning authority had not applied his mind. It seems that there was no case that sanction itself was bad if the sanctioning authority was not examined. 10. Though, there cannot be a quarrel regarding the legal proposition laid down by the Supreme Court in **State of MP's case** (supra), as distinct from that case, in this case sanctioning authority was not at all examined. It is one thing to say that the sanctioning authority was examined and that, he was not questioned regarding non application of mind and prejudice caused to the accused. Here, there is total lack of evidence as to ensure that the authority had properly exercised its jurisdiction by due application of mind on the basis of the records. The above witness was not even tendered in evidence. Hence the accused lost a vital opportunity to establish by cross examination of witness that, there was absolute lack of evidence regarding sanction. 11. The learned counsel for the petitioner vehemently Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 17 contended that the complainant was not examined and the complaint was also not marked. There is no dispute that, according to the prosecution, the then Tahsildar had found out the alleged irregularities, based on which, the crime was initiated. The details of the above allegations, the basis of the conclusions that there was falsification of accounts and misappropriation was not available on record. The above complaint was not produced and the complainant was not examined. Ext.P39 is the FIR which was registered by the then DySP. He was not examined. PW15 who was the Inspector of Vigilance, who deposed that, he was familiar with the signature of the DySP, and thus Ext.P39 was marked through him. The above contention was considered by the learned trial court as seen from the discussion at paragraph 25 of the judgment. The court below proceeded to consider whether FIR was properly proved or not. The court held that, it was clear from the records that the Tahsildar had only reported the matter of misappropriation to the police. FIR was proved through PW15. Complaint leading to the registration of the case was only to inform that misappropriation was committed by the accused. 12. It seems that the court below went besides the point while answering the above issue. It was not a question of mere marking of the FIR. The question was about the materials based on which the Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 18 Tahsildar arrived at a conclusion that the amount was misappropriated by the accused. Due to the non examination of the complainant, the accused lost a vital opportunity to ascertain the genesis of the allegation, the preliminary details on the basis of which the officer who for the first time arrived at a conclusion regarding misappropriation had laid the complaint. 13. The learned senior Government pleader, to substantiate the contention relied on the decision reported in **Bable @ Gurdeep Singh v. State of Chhattisgarh (AIR 2012 SC 2621)** wherein it was held that the evidentiary value of a FIR under section 154 CrPC was not totally lost if the informant turns hostile. Merely because the informant turned hostile, it cannot be said that FIR would lose all of its relevancy and cannot be looked into for any other purpose. The Honourable Supreme Court again in **Vinod Kumar v. State of Punjab (AIR 2015 SC 1206)** held that the mere fact that complainant had turned hostile would not result in collapse of whole case of prosecution. 14. In answer to the above, learned counsel for the accused relied on the decision in **Thankamma K. v. State of Kerala (2016(1) KHC 366)** which directly answers the above contention whether, non examination of the complainant was fatal or not. Learned Single Judge held that, when the final report shows that Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 19 definite complaint led to an enquiry by vigilance, and FIR is based on report of such enquiry, prosecution is bound to prove said complaint which led to the crime and prosecution is also bound to examine complainant. The report of enquiry must also be produced before Court. 15. In the case at hand, it is pertinent to note that Tahsildar had not merely reported the misappropriation to the police. Even according to the prosecution, Tahsildar was the first person who on verification of the accounts and after a detailed enquiry found out misappropriation after a detailed enquiry. The nature of such allegation and the nature of related aspects also need to be considered by the Court. It is to be noted that, he was the first person who had thrown light into the allegation and it formed the genesis of the complaint. It was not only essential for completing the investigation, but also to ensure that a wrong person was not sent for trial. In the light of above and considering special facts of the case, I feel that, non examination of the complainant has largely affected the credibility of the prosecution case. 16. It was also contended by the learned counsel for the petitioner that the non examination of CW24 and the Junior Superintendent of Tahsildar office were fatal to the prosecution case. It has come out in evidence that the Junior Superintendent of Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 20 Thalassery Tahsildar office was bound to verify the cash book. The Junior Superintendent used to receive cash from the accused who was in charge of cash. The JS who was in charge of cash used to receive cash from the accused. He was the best person who would have stated about the amount which he had received from the accused. Hence, those witnesses were crucial, it was argued. 17. To counter this argument, learned counsel for the prosecution relied on the decision reported in **Harpal Sing v. Devinder Singh and Another (AIR 1997 SC 2914).** In that case, it was held that the Public Prosecutor has discretion not to examine certain witness during trial to avoid proliferation of evidence, which could save much time of the Court, unless examination of such witness would achieve some other purpose. In the instant case, evidence of other witnesses, if examined, would only result in the duplication of the same category of evidence. The learned prosecutor further relied on the decision reported in **Vijendra Singh v. State of** **UP (AIR 2017 SC 860)** to contend that the defence of non examination of the independent witness cannot be accepted as it would only be repetition of evidence, already on record. 18. There cannot be any quarrel regarding the above legal proposition. However, it is relevant to note that the best person who had direct knowledge regarding the functioning of the Tahsildar office Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 21 and the money collected and handed over to PW15 was the Junior Superintendent herself. She was not examined for reasons stated by the court above. Hence, it is a clear case of non examination of vital witnesses coupled with the fact that persons examined were persons who did not have direct knowledge regarding the entire transaction, has considerably weakened the prosecution case. 19. As mentioned above, prosecution was bound to establish that the disputed entries were made by the accused and there were falsification and forgery of records. It seems that, sample signature of the accused was taken, sent for expert opinion and receipt issued. It is to be noted that the person who was examined to prove the signature of the accused was a person who did not have direct link with the allegation and did not state at the time of examination, the circumstances under which he was conversant with the signature and handwriting of the accused. It is pertinent to note that, none of the persons who had direct knowledge regarding the signature and the handwriting were examined. It is also seen that on the other hand, signature was identified by a person who was not a colleague nor a staff directly working under the accused. To support the case of the prosecution, learned special prosecutor for the vigilance relied on the decisions reported in **Ajit Savant Majagavi v. State of Karnataka (AIR 1997 SC 3255) and Hema v. State, through Inspector of** Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 22 **Police, Madras (AIR 2013 SC 1000)** . In the former case, it was held that section 73 of the Evidence Act does not specify the person by whom the comparison of the signature can be made. However, the Court held that it was clear that comparison may either be made by handwriting expert under Sec.45 or by any person as provided by Sec.47 of the Code itself. However, the Court cautioned that as a matter of extreme prudence and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest of doubt should leave the matter to the wisdom of experts. But this does not mean that the Court does not have the power to compare the disputed signature with the admitted signature. It is true that the investigation had carried out scientific examination. But the report was neither produced before the court nor the expert examined. In the above circumstances, it can safely be presumed that, though the examination of a witness was strictly within the domain of the prosecutor, non examination of the handwriting expert in the case at hand is fatal since the Court also did not undertake the responsibility of comparing the signature. In the latter case, it was held that the handwriting of the accused can be proved by the person with whom the accused had admittedly worked. The person who was examined to establish the handwriting was not Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 23 the competent person. 20. It was also contended by the learned counsel for the petitioner that the person who had laid the charge was also not examined. Though this does not appear to be fatal to the prosecution, cumulatively it has some impact on the credibility of the evidence let in by the prosecution. 21. In the case at hand, learned counsel for the vigilance specifically contended that while proving misappropriation, it was only sufficient if the entrustment alone is proved and if so, the accused must be deemed to have committed an act unless he is able to establish the disbursement. It was held in **Bhargavan Pillai v.** **State of Kerala (2004(2) KLT 725) SC),** the actual mode of enstrustment or misappropriation was not be proved by the prosecution. Once it was shown that there was an entrustment, it was duty of the accused to show that either that there was no entrustment or that he could properly account for. 22. In **Lingom K. v. Superintendent of Police and Another (2011 (3) ILR 795)** and in **O.P.Balalchandra Kaimal v. State of** **Kerala (2011(3) KLJ 575)** it was held that regarding non payment into treasury of revenue collected, the prosecution was duty bound to establish the case of prosecution. It was held that a reading of S.13 of the PC Act would show that a public servant was said to have Crl.Appeal.Nos.437, 443, 445 and 446 of 2006 24 committed the offence of criminal misconduct, if he had dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as public servant. 23. An analysis of the entire facts show that, though few witnesses were examined and substantial evidence let in, the prosecution case suffers from several infirmities. Even the allegation against the accused could not be established beyond reasonable doubt. Hence, the accused is entitled for an acquittal on the benefit of doubt. In the result, appeals are allowed. The conviction and sentence imposed against the accused stand set aside and accused is acquitted. All the criminal appeals are allowed accordingly. Sd/- **SUNIL THOMAS** **JUDGE** **Sbna/**