CRL.A. Nos. 2920 of 2008 and 2923 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** **CRL.A.No.2920 OF 2008** **AGAINST THE ORDER/JUDGMENT IN CC 9/2005 DATED 18-11-2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM** ## **APPELLANT/2nd ACCUSED:** **MOHAMMED HANEEFA AGED 62 YEARS S/O.KHADAR MOIDEEN RAWTHER, RESIDING AT HAZEENA, MANZIL, T.C. 33/2564, ARAPPURA ROAD, VATTIYOORKKAVU, THIRUVANANTHAPURAM. FORMERLY SENIOR SUPERINTENDENT OF POLICE, SREE SWATHI THIRUNAL COLLEGE OF MUSIC THIRUVANANTHAPURAM** **BY ADVS. SRI.S.K.AJAY KUMAR SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR SMT.PRIYA. H. SRIK.C.SURESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SPL.PP SRI.A RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2019, ALONG WITH CRL.A.2923/2008, THE COURT ON 24-02-2020 DELIVERED THE FOLLOWING:** Crl.Appeal.Nos.2920 and 2923 of 2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** **CRL.A.No.2923 OF 2008** **AGAINST THE ORDER/JUDGMENT IN CC 9/2005 DATED 18-11-2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM** ## **APPELLANT/1st ACCUSED:** **SRI. KESAVAN NAIR FORMERLY U.D.CLERK,, SREE SWATHI THIRUNAL COLLEGE OF MUSIC, THIRUVANANTHAPURAM.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **SPL.PP SRI.A RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-122019, ALONG WITH CRL.A.2920/2008, THE COURT ON 24-02-2020 DELIVERED THE FOLLOWING:** Crl.Appeal.Nos.2920 and 2923 of 2008 3 ## **COMMON JUDGMENT** These appeals arise from C.C.No.9 of 2005 of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram for offences punishable under sections 13(1)(c) r/w 13(2) of the PC Act and sections 409, 477A and 120B of the Indian Penal Code. The first and second accused who stand convicted for the above offences have preferred these appeals. 2. The prosecution case was that the first and second accused were working as the UD clerk and Senior Superintendent, respectively of Sree Swathi Thirunal College of Music, Thiruvananthapuram and as such, they were public servants. They were entrusted with the dominion over the Government cash and documents of that institution. While so, they entered into a criminal conspiracy and in pursuance of that conspiracy, they committed criminal breach of trust and dishonestly or fraudulently misappropriated a sum of Rs.94,660.75/- by making false entries in the cash book by not accounting the daily collection of cash in the cash book and unauthorized physical sanction of cash from the cash chest during the period 29.09.1998 to 05.04.1999. Preliminary enquiry was conducted by the Finance Officer of the Directorate of Collegiate Education. After the physical verification, he found out irregularities and also that, first accused had unauthorizedly left the Crl.Appeal.Nos.2920 and 2923 of 2008 4 institution with keys of the cash chest of the college. In the preliminary enquiry, it was suspected that, amounts were misappropriated. He recommended for an auditing. Accordingly, audit was conducted by CWs.2 to 5. A substitute cash book was prepared and on the basis of the available records, it was found that, there was a deficit of Rs.94,660.75/-. It was alleged that the first accused was dealing with the cash and the second accused, being the senior superintendent, was bound to exercise supervisory jurisdiction. Accordingly, the matter was entrusted to the Vigilance and Anti-Corruption Bureau, Thiruvananthapuram. Investigation was conducted by the DySP and after investigation, final report was laid. Accused faced trial for the above offences before the court below. 3. Before the court below, accused prayed not guilty. On the side of prosecution, PWs.1 to 6 were examined and Exts.P1 to P30 were marked. There was no defence evidence. The court below, on the basis of the available materials, found both the accused guilty and convicted them for offences punishable under sections 13(1)(c) r/w 13(2) of the PC Act and sections 409 and 477A and 120B of the Indian Penal Code. They were sentenced to undergo three years rigorous imprisonment for offences punishable under sections 13(2) r/w 13(1)(d) of the PC Act and a fine of Rs.50,000/- with default sentence of rigorous imprisonment for one year each, rigorous imprisonment for three years for offence punishable under section 477A IPC with a fine of Rs.50,000/- each and Crl.Appeal.Nos.2920 and 2923 of 2008 5 in default, to undergo rigorous imprisonment for one year each for offence punishable under section 409 IPC and to undergo rigorous imprisonment for two years each for offence punishable under section 120B IPC. All the sentences were directed to undergo concurrently. 4. Aggrieved by the conviction and sentence, accused have filed these separate appeals. Heard the learned counsel for the appellants and learned Public Prosecutor on behalf of VACB. Examined the records. 5. Challenging the conviction, learned counsel for the first appellant contended that the prosecution did not obtain proper sanction from the competent authority for launching the prosecution. It was contended that, there was huge unexplained delay in registering the crime. It was further contended that the first accused was not in exclusive custody of the chest. It was in the joint custody of the second accused and the Principal, which was evidenced by the available records. It was contended that the second accused had signed Ext.P18(a) indicating that, he was holding the joint custody. It was also contended that, evidence on record indicated that, second accused along with the Principal was holding the keys and accordingly, the first accused cannot be held responsible for misappropriation. It was further contended that, he had applied for leave on 24.02.1999 and had not attend the institution on the remaining days. Hence, he cannot be fastened with any liability, much less criminal liability. It was also Crl.Appeal.Nos.2920 and 2923 of 2008 6 contended that, Exts.P16 and P17 documents indicated that, he had disbursed the stipend due to the eligible students. 6. Learned counsel for the second accused contended that he did not have any supervisory jurisdiction over the first accused. He was not involved in any monetary transaction. Since the first accused had absconded with the keys of the cash chest, under the directions of Principal, he was forced to take charge of the cash received in the college and started maintaining the cash accounts. Even though the accused had attended thereafter on three specified days, Principal failed to take action against him and to get the keys from him. The failure of the Principal cannot be attributed to him. 7. To substantiate the contention of the first accused regarding the sanction, learned counsel for the first accused relied on the decisions reported in **Mohammed Iqbal Ahamed v. State of A.P.** **(1979 KHC 667)** wherein, it was held that a cryptic order was not sufficient to convey a proper and due application of mind and any subsequent fact which may come into existence after the decision granting sanction has been passed, was wholly irrelevant. 8. To support the case of valid sanction, prosecution essentially relied on the oral evidence of PW5, the Director of Collegiate Education, Thiruvananthapuram who had granted Ext.P24 sanction. He deposed that, he had issued the sanction order. The report of the preliminary enquiry and all the connected records were forwarded to him by the Crl.Appeal.Nos.2920 and 2923 of 2008 7 vigilance department. He had perused the above documents and was satisfied that, sanction ought to be granted. Accordingly, sanction was granted. He also deposed that he had perused the factual report as well as the FIR before according sanction. He also asserted that he was competent to remove the first accused from the office at the time of issuance of the order. 9. The sanction order indicate that the sanctioning authority has properly applied his mind. It is also pertinent to note that, all the records were made available to the sanctioning authority who has stated that, he had perused the records. There was no serious cross examination on any of the facts disclosed by him in evidence. Neither the competency nor the conclusion arrived at by him was challenged in the cross examination. In **Sekharan K v. State of Kerala and Another (2017 CRI.L.J.1539)** it was held that, any dispute regarding the competency of the authority granting sanction has to be raised at the earliest available opportunity. It was held therein that, such a question cannot be raised in appeal for the first time without raising same at stage of discharge or at the time of examination of witness. In the above circumstance, the contention of the learned Public Prosecutor that, there was proper sanction is only to be sustained. 10. According to the first accused, though the alleged misappropriation occurred during the period 29.09.1998 to 05.04.1999, crime was registered only on 18.04.2002. The inordinate delay was not Crl.Appeal.Nos.2920 and 2923 of 2008 8 sufficiently explained nor justified by the prosecution, it was contended. To support the above contention, learned counsel relied on the decisions reported in **Thulia Kali v. State of Tamil Nadu (1973 AIR 501)** and **Mahendra Lal Das v. State of Bihar and Others ((2002)1 SCC 149).** In both cases, the Court held that, speedy justice was the mandate of the Constitution and delay in launching the prosecution affects the credibility of the prosecuiton. 11. This was answered by the learned Public Prosecutor by relying on the decision reported in **Superintendent of Police, Karnataka, Lok Ayukta and Another v. B.Srinivas (2008 KHC** **6714)** wherein, it was held that, whenever there was delay on the part of investigating agency in completing the investigation, such delay cannot be a ground for quashing the FIR. Supreme Court held that, it would be difficult to formulate any inflexible guideline or rigid principle in determining as to whether the accused has been deprived of fair trial on account of delay or protracted investigation which would depend on various facts in the investigation. In the case at hand, immediately after finding that the first accused absconded with the keys of the treasury chest, matter was reported to the appropriate authority and enquiry was conducted. On the basis of his report, audit was conducted and immediately thereafter, matter was reported to the Government which launched the prosecution process. There is nothing on record to show that, there was any unexplained delay. Consequently, I am not inclined Crl.Appeal.Nos.2920 and 2923 of 2008 9 to accept the contention of the learned counsel for the first accused that there was delay in launching the prosecution. 12. While analyzing the available materials which have been considered in detail by the court below, to assess the individual culpability of the accused, it is essential to identify the undisputed facts. It is not in dispute that the accused was entrusted with the duty of dealing with cash. The college authorities had a specific case that while being employed as the clerk in charge of cash, first accused absconded with the keys of the chest on 25.02.1999. It is on record that the accused did not hand over the keys thereafter and was on leave continuously. It is also brought on record that, he had attended the college on 10.03.1999, 11.03.1999 and 19.03.1999. He received his salary on 19.03.1999, though he was on unauthorized leave. It is also seen that the second accused started writing the cash book from 16.02.1999 which continued up to 05.04.1999. It is reported by the Principal also that, it was done under his suggestion and due to the peculiar contingency that arose consequent to the absconding of the first accused. The chest was inspected by the Finance Officer and thereafter kept it under seal. It was opened on 28.05.1999. The available materials also indicate that, from the last week of February onwards, first accused was on unauthorized leave. The Finance Officer who was examined as PW3 had stated that, at the time of his inspection, a sum of Rs.29,501.95/- kept in almirah was handed over by the second Crl.Appeal.Nos.2920 and 2923 of 2008 10 accused to him. He had stated that, accounts of that period during which the second accused handled the cash, was properly accounted. 13. To establish the allegations against both the accused, prosecution relied on the oral evidence of PWs.1 to 3. PW1 was the senior Superintendent of the Music College during the period 01.04.1998 to 07.09.1998. First accused had worked as UD Clerk under him for a brief period. Thereafter, PW1 was succeeded by the second accused who took charge on 07.09.1998. He identified Ext.P1 cash book. On the basis of the above document, he deposed that the first accused started writing the cash book from 04.06.1998. Ext.P2 is the original treasury bill book. Ext.P3 is the denomination register. According to PW1, second accused started entering on it from page 145 onwards. He had endorsed that, he had received charge of cash from his predecessor-in-office. Ext.P5 was the service book of the first accused which showed that the first accused joined duty on 03.06.1998. Ext.P6 was the establishment file which contained the posting order of the first accused and the requisition of the first accused to permit him to take charge. 14. Ext.P11 was the report submitted by PW3 the Finance Officer which indicated that, there was loss of money. This was the conclusion arrived at by him after perusing the records and also verifying the available materials. According to PW1, pay acquaintance register showed a loss of Rs.72,762.75/-. Ext.P14 was the cash book. It Crl.Appeal.Nos.2920 and 2923 of 2008 11 contained Ext.P14(a) entry dated 29.09.1998 and Ext.P14(c) entry dated 12.11.1998. These were entries of the first accused and it also contained the seal of the second accused. It does not disclose that the second accused affixed his signature. On the basis of Ext.P14(a) and P14(b), PW1 deposed that, there was a difference of Rs.60/-. 15. Ext.P16 was the stipend register for the SC/ST students. On the basis of that record, PW1 deposed that, Rs.13103/- was not disbursed to the eligible students. Another corresponding false entry was made in Ext.P14. He further deposed that, there was a misappropriation of Rs.43/- evidenced by Exts.P19 and P14. 16. PW2 was the officer who audited the account pursuant to Ext.P11 report and submitted the details. According to him, as per the acquittance register and cash book, there was a difference of Rs.60/- as on 29.09.1998. Stipend of Rs.13103/- and Rs.8692/- totalling to Rs.21795/- was not disbursed, though it was shown as expense in the cash register. He deposed that the corresponding stamped receipts evidencing the disbursement of the amounts from the eligible students was not seen from Ext.P16. It was also stated that the amounts covered by receipts TR5 and TR6 were not entered in the relevant cash book. He deposed that the amounts were misappropriated. PW2 further stated that, as per actual closing balance on 24.09.1998, there was a difference of Rs.1,000/-. Towards the stipend that was liable to be disbursed, there was a difference of Rs.20,855/-. Towards the stipend Crl.Appeal.Nos.2920 and 2923 of 2008 12 due to the scheduled caste of students and OEC students, there was a difference of Rs.8022/-. The difference found by the Finance Officer on the closing balance was Rs.20,601.75/-. The witness deposed that, on breaking open the chest, a sum of Rs.1815.25/- and receipts for Rs.14,314/- were seen instead of a sum of Rs,.1,18,399.95/-. On the basis of the above documents and calculations, PW2 deposed that the total misappropriation was Rs.94,660.75/-. 17. PW3 was the Finance Officer who had submitted Ext.P11 report. It showed that, there was a loss of Rs.72,762.75/-. PW3 gave evidence which specifically corroborated the evidence tendered by PW1 and PW2. The version of PWs.1 to 3 disclosed that there was substantial misappropriation of funds. 18. The above witnesses were cross examined in detail by the learned counsel for the accused Nos.1 and 2. However, nothing could be brought out in the evidence of above witnesses to discredit the version spoken by them. The learned counsel for the petitioner specifically contended that the first accused did not have dominion over the cash. Relying on the version of PWs.1 to 3, it was contended that the evidence given by the witnesses substantially varied on materials facts. It was also contended that, evidence tendered by the above witnesses indicated that the Principal had signed the cash book. The benefit of it should be extended to accused Nos.1 and 2. It was contended by both the counsel for the accused that the above evidence Crl.Appeal.Nos.2920 and 2923 of 2008 13 was insufficient to cast the responsibility on each of the accused. It was contended by the learned counsel for the accused that, there was no evidence regarding the misappropriation and the prosecution failed to establish the exact manner in which misappropriation was conducted and the full amount that was misappropriated. The evidences of the above witnesses show that, they have tendered evidence relying on documentary evidence. The material details of the entries and the amounts so misappropriated were disclosed by PWs.2 and 3 with precision. Their evidence is supported by the conclusions arrived at by PW3 in Ext.P11 report. It is seen that, this could not be demolished in cross examination. 19. It is true that the exact amount misappropriated and the manner in which it was misappropriated could not be completely brought out in evidence. Leaned Public Prosecutor, relying on the decision reported in **Jaikrishnadas Manohardas Desai and Another v. State of Bombay (1960 KHC 694)** contended that, to establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. It was held that, once entrustment was established, it was the duty of the accused to account for the properties entrusted to him. In **M.K.Chandrasekharan Nair v. State of Kerala (2015(4) KLH 603)** it was held that, to establish the offence under Crl.Appeal.Nos.2920 and 2923 of 2008 14 section 409 IPC, once the entrustment of articles was proved and there was a direction to disburse the articles in a particular manner and if the accused failed to explain the loss or account for the same in the manner required for or gave an explanation which was false or improbable, then dishonest intention and misappropriation can be inferred and the accused can be convicted for the offence of criminal breach of trust and misappropriation. It was held that, if that was done by a public servant, then, it will amount to misconduct and he can be convicted for the offence of his misconduct under the prevention of Corruption Act. In **Vijayakumar K v. State of Kerala (2016(1) KLD 592)** it was held that, in order to prove offence under section 409 IPC, it must be proved by prosecution that there was entrustment of the property with the accused and he had dishonestly misappropriated the same for his purpose. 20. By applying the parameters laid down in the above decisions, it can be held that, prosecution has established specifically that the first accused was in charge of the cash and maintained the cash chest. It is also seen from the records that, he had been maintaining the cash book and making entries in the corresponding documents. Evidently, endorsement of cash book is established. The evidence of PW3 convincingly showed that the first accused absconded and did not surrender the keys of the cash. Cash chest had to be broke open and the amount in the cash chest did not tally with the cash book and the Crl.Appeal.Nos.2920 and 2923 of 2008 15 corresponding documents. Even in the cash book and supporting documents there were mistakes, duplication of amounts and misappropriation was patent from the documents. I find no reason to disbelieve the evidence tendered by PWs.1 to 3. Then the responsibility to account shifted to the first accused, which he failed to discharge. 21. Regarding the second accused, allegation of the prosecution was that, being the Superintendent, he was the DDO and consequently, bound to supervise the first accused. He was having supervisory control over the first accused. It was alleged that, he failed to discharge the duties, conspired with the first accused and misappropriated the amounts. According to the prosecution, he also failed in discharging his supervisory authority. 22. According to PW1, Ext.P4 showed that the second accused had handed over the charge to his successor on 26.10.1999. A cash of Rs.38,877.10/- was also handed over. Ext.P7 was the posting order of the second accused in the Music College. PW1 stated that, DDO in the Music College was the Senior Superintendent. Ext.P10 was the Government Order evidencing the duties of Senior Superintendent. Clause 5 showed that, all the administration charge of finance vested with the Senior Superintendent. He was also entrusted with the duties of verification of cash book, receipts and chalan. Exts.P2(b) and P2(c) showed that the second accused was the DDO. DW2 in his evidence also asserted that, he was bound to supervise the first accused. Crl.Appeal.Nos.2920 and 2923 of 2008 16 23. Evidence of PW3 shows that he was informed by the Principal that the first accused had absconded with the keys of the chest. PW3 visited the college on 05.04.1999. The Principal and second accused was present. They reported that cash chest could not be opened since 25.02.1999. It was also reported that, in that circumstance, second accused had handled the cash. PW3 in his evidence asserted that, during the above period, second accused started dealing with cash directly, though it was properly accounted. 24. In the above circumstance, crucial question that arises in relation to the second accused is whether, he can be held responsible for the criminal liability for the loss caused by the first accused. There was no indirect evidence to show that the second accused had conspired with the first accused. There is nothing on record to show that second accused had committed any misappropriation. Liability can be attributed to second accused depending on whether he can be held to be jointly responsible for the entrustment of the cash with the first accused and whether, he can be held responsible for the criminal breach of trust which is discernible from the loss of money and the deficit in the amount. 25. PW2 in his evidence stated that as the DDO, the signature of the second accused is not seen in the cash book or other documents. PW1 referred to the record which evidenced that the second accused had verified and counter signed in his capacity as DDO. PW1 stated Crl.Appeal.Nos.2920 and 2923 of 2008 17 that in Ext.P14(a) to P14(c), the second accused has endorsed. Another incriminating material that has been projected by the prosecution to evidence that the second accused was exercising the supervision of the cash dealings was that, at page 31 of the Ext.P18 dated 27.02.1999, an endorsement was made by the second accused in his handwriting that ”cash physically verified and found correct as per the following denomination”. It was further noted by the Principal that he would sign later. After that endorsement, Principal had signed it. The witness has stated that, it might be possible that Principal had certain doubts consequent to which, he has not signed the document. It is to be noted that though the endorsement was in the handwriting of the second accused, he has not signed it. There was an endorsement of the Principal that he will sign later. It is not clear from the materials whether second accused had actually conducted a physical verification and was satisfied with the entries. Even though PWs.1 to 3 deposed that, Principals have no role in the financial dealings and that, they have no knowledge in accounting, however, evidence show that, as a matter of fact, Principal has affixed his signature at several pages. There is nothing on record except of the endorsement at page 31 of Ext.P18 to show that the second accused was exercising financial control along with the first accused. The second accused had not in fact signed or endorsed that physical verification was conducted. Hence, no conclusion can be arrived at against the second accused. Crl.Appeal.Nos.2920 and 2923 of 2008 18 26. Apart from the oral evidence of the witnesses, Principal used to counter sign cash receipts. There is material on record to show that, Principal was holding one key along with the first accused. The second accused had no control over the cash chest. Even assuming that, physical verification was done for the period 27.09.1998 to 05.04.1999, second respondent cannot be held responsible along with the first accused for the lesser amount found in the chest on a much later date. If the Principal used to sign the cash book and endorsed the various entries, it is doubtful as to how the second accused can also have a joint responsibility. PWs.1 and 2 have asserted that, it was a practice that Principal also used to sign. Independently, there is no material to show that the second accused was jointly holding the cash account with the first accused. Hence, the evidence tendered by the prosecution is insufficient to fasten a criminal liability on the second accused. 27. It is true that, certain latches are seen on the part of the second accused. Even though first accused came to the college on three days, the key was not taken by the second accused or the Principal. Since the first accused was on unauthorized leave, second accused was not justified in granting him salary. This can only be considered as misconduct, which warrants disciplinary action. It has come out in evidence that disciplinary proceedings were initiated against second accused. However, evidence let in by the prosecution is not sufficient to fasten a criminal liability. Hence, I am inclined to give the benefit of Crl.Appeal.Nos.2920 and 2923 of 2008 19 doubt. 28. Having considered the above material on record, I am inclined to hold that, prosecution has succeeded in proving that the first accused had committed the offences punishable under sections 13(1)(c) r/w 13(2) of the PC Act and sections 409 and 477A and 120B of the Indian Penal Code. The second accused is entitled for acquittal. Though first accused is liable for the criminal liability, sentence imposed by the court below seems to be on the higher side. Having considered the fact that the incident happened in 1998 and the accused were facing trial since long, I am inclined to take a lenient view. 29. Considering this, I am inclined to modify the sentence imposed by the court below as follows: (i) For the offences punishable on the first accused under section 13(1)(c) r/w 13(2) of the PC Act, he shall undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/- in default of which, he shall undergo SI for one month. (ii) For offence punishable under section 477A IPC, first accused shall undergo rigorous imprisonment for six months. (iii) For offence punishable under section 409IPC, accused shall undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/- and in default, to undergo SI for one month. Crl.Appeal.Nos.2920 and 2923 of 2008 20 In the result, I. Crl.Appeal.No.2923 of 2008 is allowed in part. While maintaining the conviction for the above offences, sentence imposed by the court below stands modified as above. II. Crl.Appeal No.2920 of 2008 is allowed. Second accused is hence acquitted. **Sd/-** Sbna **SUNIL THOMAS JUDGE**