Baby Augustine v. State of Kerala

Crl.Appeal No.1331/2013 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941** **CRL.A.No.1331 OF 2013** **AGAINST THE ORDER/JUDGMENT IN CC 161/2008 DATED 19-08-2013 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** ## **APPELLANT/1ST ACCUSED:** **BABY AUGUSTINE, AGED 63 YEARS S/O.AUGUSTINE , RESIDING AT 'EDATTU 'HOUSE, THODUPUZHA PO, THODUPUZHA IDUKKI DISTRICT, (FORMERLY ASSISTANT II, CIVIL SUPPLY DEPOT, THODUPUZHA)** **BY ADVS. SRI.T.A.SHAJI (SR.) SMT.NAMITHA JYOTHISH SMT.K.P.SHEEBA SRI.V.VINCENT DIDACOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY DY.S.P., VIGILANCE AND ANTICORRUPTION BUREAU, KASARAGOD, THROUGH THE GOVERNMENT PLEADER,HIGH COURT OF KERALA, ERNAKULAM - 682031** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-122019, THE COURT ON 10/1/2020 DELIVERED THE FOLLOWING:** Vrl.Appeal No.1331/2013 2 ## **JUDGMENT** The first accused in CC No.161/2008 of the Enquiry Commissioner and Special Judge, Kottayam, aggrieved by his conviction and sentence imposed by the above court for offences punishable under section 13(1)(c) read with section 13 (2) of the Prevention of Corruption Act 1988 and sections 409,465,471 and 477A of IPC and section 248 (2) of Cr.P.C., has preferred this appeal. 2. The prosecution allegation is that, the petitioner, while working as a senior assistant Grade- II , Thodupuzha Depot,of the Kerala State Civil Supplies Corporation Ltd. during the period from 1-4-1998 to 12/8/1999, misappropriated 48 quintals of sugar from the depot . Petitioner herein was the custodian of the sugar during the above period. The prosecution alleged that the first accused falsified the accounts and used it as genuine for committing the misappropriation of sugar valued at Rs.1,41,600/-. The allegation against the second accused, who was the Assistant Manager(Administration) of the above depot during the relevant period,was that she, by her inaction and illegal omission in verifying the stock records, aided the first accused in committing the misappropriation. The third accused who had succeeded the first accused and took charge on 16/7/1999 Crl.Appeal No.1331/2013 3 did not conduct physical stock verification and continued to sell sugar from the stock and thereby allegedly aided in suppressing the misdeeds committed by the first accused. 3. On the basis of the complaint , crime was registered and PW10, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau conducted investigation. After completion of the investigation, he laid the charge sheet against all the three accused. They appeared before the court below and pleaded not guilty. 4. On the side of the prosecution, PWs 1 to 13 were examined and Exts.P1 to P104 were marked. On the side of the accused, DW1 was examined and Exts.D1 to D7 (a) were marked. On an evaluation of the materials placed before the court below, learned Judge found the first accused guilty, convicted and sentenced him to undergo RI for one year and to pay a fine of Rs.80,000/- with default sentence for offence punishable under section 13(1)(c) read with section 13 (2) of the Prevention of Corruption Act 1988. For offences punishable under sections 409,465,471 and 477A of IPC also he was sentenced to undergo RI for one year. It was directed that the substantive sentences shall run concurrently. Remaining accused were found not guilty of the offence charged against them and acquitted under section 248(2) of Cr.P.C. Aggrieved by the conviction and sentence imposed against him, the first accused has preferred this appeal. Crl.Appeal No.1331/2013 4 5. Heard the learned senior counsel for the appellant and the learned Public Prosecutor. Examined the records. 6. The crux of the prosecution allegation was that there was shortage of 48 quintals of sugar worth Rs.1,41,600/- during the period from 1-4-1998 to 12/8/1999. Admittedly, the first accused was the custodian of the sugar in the Thodupuzha depot of the Corporation. He was the senior assistant, during the period from 1/11/1997 to 16/7/1999. The first accused was relieved on 16/7/1999. The third accused succeeded him and took charge from him on 16/7/1999. The second accused was the supervising officer during the period of shortage. Evidently, the shortage covers the brief period from 16/7/1999 to 12/8/1999 during which period the third accused was in charge. Crux of the prosecution allegation as against the third accused was that he took charge on 16/7/1999 without conducting physical verification and continued to sell sugar, till the shortage was detected. With this brief facts, the evidence let in by the prosecution will have to be evaluated to find out whether the allegation against the first accused stands established. 7. According to the prosecution, PW5 took charge of the Thodupuzha depot on 17/7/1999. He took physical verification of the stock on 11/8/1999 and found shortage of 127 quintals of sugar. This was immediately reported to the Managing Director. Audit was conducted thereafter through PW1, who submitted Ext.P1 report. Prosecution relied on the oral Crl.Appeal No.1331/2013 5 evidence of PW1, PW3 who was the senior assistant of the depot, PW8, the assistant manager of the depot from 2003 onwards and Ext.P1 report submitted by PW1, to establish the prosecution allegation. 8. The evidence show that sugar reaches the depot or is released from the depot by five methods. The first one is the receipt of sugar from the mill, which is entered in the GRS entries, evidenced by Exts.P3, Ext.P3 to P8 series, Ext.P28 and P28 series. The second source is by transfer from other depots which are evidenced by Ext.P9, Ext.P9 to P13 series, Ext.P20 and P29 series. The third is by sale from the depot to other depots, evidenced by GTO entries supported by Exts.P27 to P27 series. Another source is by the sale from the different Maveli stores evidenced by Ext.P26, Ext.P26 series, Ext.P30 and Ext.P30 series. The last source is by sale to ration shop, evidenced by release orders. These are evidenced by Exts.P14, Ext.P14 series, Ext.P25, Ext.P25 series, Ext.P31 , Ext.P31 series, Ext.P34, Ext.P34 series and Ext.P100 to Exts.P103. Ext.P20 the stock register of the depot and Ext.P10 is the audit report prepared by Ext.PW1. The court below for arriving at a conclusion that there was shortage of 48 quintals of sugar as alleged by the prosecution and to reach a finding of guilt of the first accused, essentially relied on the oral evidences of PW1, PW3, PW6, PW7 and PW8. The court below held that the first accused, being the custodian of the sugar, was responsible for the shortage. Regarding the role of the second accused, the court below Crl.Appeal No.1331/2013 6 found that though there were certain lapses on her part, which were essentially supervisory in nature, she could not be held guilty for lapses which occurred due to the extreme work load in the depot. The court concluded that no culpable negligence could be drawn, to cast criminal liability on her. Consequently, she was acquitted. 9. Regarding the role of the third accused, the court found that he took over the charge from the first accused without stock verification. He continued to do business for few days. The court below held that there was no evidence to indicate that during those days there was no manipulation. The court also noted that the third accused had alerted higher ups. Hence he could not be prosecuted for intentionally aiding the first accused by not taking the stock verification. The court held that since he himself had alerted the senior officers, raising such an allegation along with the first accused was strange . Consequently, he was acquitted. 10. Specific prosecution case was that shortage was during the period from 1-4-1998 to 12/8/1999. The court below accepted that there was shortage of 48 quintals during the above period. If that be so, the shortage technically covers the period from 16/7/1999 to 12/8/1999 during which period the third accused was holding the charge and had transacted the sugar kept in the depot. If the third accused is still acquitted, technically the first accused should also get the benefit of it. 11. Another major flaw in the prosecution allegation was that, Crl.Appeal No.1331/2013 7 evidently when the first accused took charge, stock verification was not carried out . Hence, there is absolutely no material to show the deficit, if any, in the stock as on the date when the first accused took charge. Even after the charge was handed over by him on 16/7/1999, stock verification was not done. This also shows that whether there was any deficit or shortage and if so, the quantity, as on the date of handing over of the charge is not available. Definitely, it is the obligation of the first accused to satisfy the successor in office abut the stock and to ensure that only after due stock verification, the charge is handed over. Corresponding duty is also imposed on the third accused, the successor in office, to take charge after ensuring that there was no shortage. In the absence of any material,it cannot safely be concluded that there was shortage on the date of handing over of the charge by the first accused and whether shortage arose subsequent to the handing over of the charge . It is evident that from 16/7/1999 to 11/8/1999 when the actual stock verification was taken, the first accused had no control over the depot. Hence, the possibility of shortage having taken place subsequent to 16/7/1999 cannot be completely ruled out. Hence, unless there is convincing and cogent evidence to show that as on 16/7/1999 there was shortage of stock, casting of criminal liability on the first accused based on doubts appears to be highly unjustifiable. . 12. Above has to be appreciated in the background that the audit Crl.Appeal No.1331/2013 8 report clearly shows that several sacks were found to be torn and also in the background that there is no specific allegation as against the the first accused that he has committed any misappropriation. However, if entrustment is established and shortage of stock is also established, legally, person who was in charge during the relevant time is bound to answer. 13. In this background, the quality of evidence let in by the prosecution is also liable to be analysed. The records show that stock verification was done on 11/8/1999 by PW5. He found a shortage of 127 quintals of sugar. Ext.P1 report prepared by PW1 shows a shortage of 48 quintals. The court below independently analysed the evidence let before it and found that there was infact shortage of 71 quintals of sugar. However , the court held that since the first accused cannot be called upon to answer for shortage for which no charge has been attributed to him, the first accused was liable to answer for 48 quintals. These facts, clearly show that regarding the actual shortage, there were divergent materials. Consequently, quality of evidence itself seems to be shaky, in the absence of cogent and consistent evidence to show the actual quantity of stock found in deficit. In other words, when the prosecution itself has different version, it directly affects the quality of evidence tendered. This benefit should enure to the accused. According to the prosecution, the closing balance as on 12/8/1999 was 138.54 quintals (levy sugur) and 43.46 Crl.Appeal No.1331/2013 9 quintals(free sale sugar) totaling to 182.00 quintals. As per Ext.P2 stock register, closing balance was 236.70 quintals. It seems that there was a mistake in Ext.P1 audit report stating that there was shortage of 182.00 quintals of sugar, which included 23 quintals of sugar ordered to be released to ration shops and retail dealers, who were not actually taken by them. As per the register it was detected as released, but ought to have in the stock since it was not taken by the concerned dealers. 14. In the course of cross examination of PW1, he revealed that it was wrongly reported that balance was 236.70 quintals instead of 182 quintals, It shows that doubts still linger in the mind of the court about the reliability of the report and materials which makes the evidence tendered before the court below shaky. It is not safe to conclude on the basis of this type of evidence that there was shortage of sugar. 15. It was vehemently contended by the learned senior counsel for the accused that the accused was exonerated from the departmental proceedings on the basis of an identical charge. Learned senior counsel relied on the decision in _**P.S.Rajya v. State of Bihar (1996) 9 SCC)**_ to contend that when an employee was exonerated in departmental proceedings on identical charge, the criminal prosecution on identical facts should be quashed. Though the above principle cannot be completely extended to the case of the appellant herein, it seems that on the basis of the same set of facts, the appellant herein was exonerated from Crl.Appeal No.1331/2013 10 misconduct. 16. Having evaluated the entire facts, it appears that it may not be safe to enter into a finding that the prosecution has succeeded in establishing the guilt of the accused in the light of the shaky evidence tendered by the prosecution. In the light of the above facts, I feel that the appellant is entitled for the benefit of doubt. Consequently, the criminal appeal is liable to be allowed setting aside the conviction imposed by the court below. In the result, the appeal is allowed. Conviction and sentence imposed by the court below on the appellant herein in CC No.161/2008 stands set aside. The accused is given the benefit of doubt and the bail bond executed by him stands discharged. dpk **Sd/SUNIL THOMAS JUDGE**