E.K. Khaleel v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 471 of 2004 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.2/2003 of SESSIONS COURT, LAKSHADWEEP DATED 05-02-2004** **AGAINST THE JUDGMENT IN CC 6/2000 of JUDICIAL MAGISTRATE OF 1ST CLASS, ANDROTH DATED 02-04-2003** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **E.K.KHALEEL, S/O. LATE SHAIKOYA, EDAYAKKAL HOUSE, AGED 45/2004,, ANDROTH, LAKSHADWEEP.** **BY ADVS.SRI.SAYED MURTHALA THANGAL SRI.R.ROHITH** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** *** STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM.** *** (THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM IS STRUCK OFF AND THE NAME OF UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY SHO ANDROTH IS IMPLEADED AS PER ORDER DATED 26.08.2014 ON CRL. M.A.5453/14 IN CR.R.P. NO.471/2004)** **R1 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.471 of 2004 ---------------------------------------------Dated this the 7[th] day of June, 2016 ## **ORDER** Revision petitioner was charge sheeted in C.C.No.6/2000 by the Judicial First Class Magistrate Court, Andrott for having committed an offence punishable u/s.403, 409 and 477A IPC. The charge against the accused is that while he was working as Godown Keeper of Co-operative Supply and Marketing Society, Andrott, being a custodian of ration commodities like rice, sugar, kerosene and empty bags by acting in the capacity of a servant of the Society, committed criminal breach of trust by fraudulently incorporating false entries in the stock register and misappropriated 34395.9 kgs of rice worth 2,71,727/- and 61 paise and 313.9 kgs of₹ Crl.R.P. No.471/2004 2 sugar worth 3578 and 46 paise (₹ ₹11.40 per kg) and 824.8 litres of kerosene worth 3134/- and 24 paise and 491 small₹ gunny bags worth 2946 and 491 big gunny bags worth₹ ₹3928 and 3 sugar bags worth 45, thereby committed the₹ criminal breach of trust and falsification of account. In the circumstances, Andrott Police registered a case and after completing investigation, S.I. of Police, Andrott laid charge before Judicial First Class Magistrate Court, Andrott. 2. In pursuance of the charge, prosecution examined PW1 to PW10 and marked Exts.P1 to P25 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and marked Exts.D1 to D3 as defence evidence. The learned Magistrate acquitted the accused u/s.403 IPC and convicted u/s.409 and 477A IPC and sentenced to rigorous imprisonment for three years u/s.409 Crl.R.P. No.471/2004 3 IPC and rigorous imprisonment for two years u/s.477A IPC. The compensation of 2 lakh was also granted to the₹ Society u/s.357(3) Cr.P.C. Against that, accused preferred CrlAppeal No.2/2003 before Sessions Court, Lakshadweep, where the learned Sessions Judge set aside the conviction u/s.409 IPC and confirmed the conviction u/s.477A IPC. Being aggrieved by that he preferred this revision petition. 3. The learned counsel for the revision petitioner submits that the actual quantity of stock entrusted and available at the time of inspection was not properly proved, moreover the physical verification has not been completed and proved in this case. When entrustment of the commodities to the revision petitioner was not proved by producing any documentary evidence, falsification of account will not attract. 4. The learned counsel for the respondent submitted Crl.R.P. No.471/2004 4 that Exts.P6(a), P6(b), P4(a) and P4(b) were recorded from the stock register which was in the custody of the revision petitioner. Further evidence with regard to the entries made in Ext.P6 is not necessary. The original of Exts.P4 (a) and P4(b) were issued to the other societies, even then without obtaining the original, it is presumed that the offence u/s.477A IPC was proved in the trial Court. ## 5. S.477A IPC reads as follows: “477A.- Falsification of accounts.- whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employoer, or wilfully and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” Section 477A deals with the falsification of accounts. It speaks 5 Crl.R.P. No.471/2004 indispensably of two offences, firstly:- (i) defrauding, altering, destroying, mutilating or falsifying any book or accounts or electronic record: and secondly (ii) making or abetting the making of false entries in the same. These two offences are possessing different characteristic and not interdependent. The main ingredients of the section are: (1) the persons come within the Section are, a clerk, officer, or servant, or acting in such capacity: (2) he must wilfully and with intention to defraud: (i) destroy, alter, mutilate or falsify any book, electronic record, paper, writing, valuable security: (a) which belongs to, or is in possession of, his employer: (b) has been received by him for, or on behalf of, his employer: or (ii) makes or abets the making of any false entry in or omits or alters from or in any such book, electronic record, paper, writing, valuable security or account. A bare analysis of the Section shows that prosecution has to prove that there was falsification of accounts with the intention to defraud by either falsifying account or making of false entry in any of the valuable securities mentioned in the section, but it does not require any injury of property. Crl.R.P. No.471/2004 6 6. For ascertaining the above ingredients, I have examined the oral testimony of PW1, Asst. Registrar, Cooperative Department, Kawarathi, Lakshadweep which shows that while he was working as in charge of the Secretary, Andrott Dweep Supply and Marketing Society from 14.5.1997 to 10.5.2000, the revision petitioner was the Godown keeper. On 13.2.1999, revision petitioner took leave and substitute was not appointed in that vacancy. As per the direction, he took charge, thereafter in the presence of the revision petitioner conducted verification and detected shortage of rice, sugar, kerosene and other articles, which were in the custody of the revision petitioner. During physical verification, 19,000 Kg rice shortage was detected. Shortage of sugar and kerosene was also detected during physical verification. Immediately, he reported the matter to the Registrar and Sub Divisional Officer (SDO). PW1 Crl.R.P. No.471/2004 7 sent Ext.P1 report to the Registrar about the shortage of ration commodities. The stock register, indent book were seized by the Police as per Ext.P3 seizure mahazar. Ext.P4 is the indent book, Exts.P5 and P6 are stock registers. 7. As per the direction of the Registrar, revision petitioner filed Ext.P1 complaint before Senior Auditor. Accordingly, Registrar appointed one Auditor and Assistant Registrar for enquiry. On 4.6.1999, he gave Ext.P2 complaint to the Sub Inspector of Police, Andrott. He produced relevant records and Ext.P3 mahazar was prepared by the Sub Inspector. He also produced Ext.P4 **.** This indent book. Exts.P5 and P6 are the stock registers witness was cross examined by the defence counsel. Even though PW1 deposed so, the original stock register at the time of taking charge and the actual quantity of the articles delivered to the revision petitioner were not Crl.R.P. No.471/2004 8 disclosed by PW1 or the Auditor. What was the actual quantity delivered to the revision petitioner's godown was not mentioned in the trial Court. The Plant Protection Officer, Agriculture Department was in-charge of the Sub Divisional Officer from 6.2.1999 to 8.3.1999. He was examined as PW2. His evidence shows that when the revision petitioner applied for leave, substitute was not appointed and as per the direction of the higher authorities, PW1 took charge and conducted physical verification. It is true that PW1 conducted physical verification after taking charge as the Secretary of Andrott Dweep Supply and Marketing Society. While taking present stock, he has to verify the original stock given to the revision petitioner, which was not stated in his evidence. 8. The evidence of PW3, the sales man shows that while he was working at Chemmacheri branch, the revision Crl.R.P. No.471/2004 9 petitioner was supplying the ration articles during 1998. As per the indent No.1126, he delivered certain items and issued quantity indent book to him, which was marked as Exts.P4. Exts.P4(a) and (b) are the relevant pages of Ext.P4, in which entries were made by the Godown keeper. On 22.7.1998, 10 sacks of rice (700kg) was delivered. The revision petitioner signed in Ext.P4(a). PW4 Asst. Registrar also deposed about the irregularities committed by the revision petitioner. The Auditor was examined as PW9, who submitted Ext.P24 audit report. PW5 is the Registrar of Co-operative Societies, TU.T. Of Lakshadweep through whom Ext.P13 to Ext.P22 were marked. PW6 attested Ext.P13 and P17. PW7 attested Ext.P8. PW8 attested Ext.P10 seizure mahazar. PW9 is the Co-operative Inspector, who identified signature of the revision petitioner. PW10 Sub Inspector registered the case and Crl.R.P. No.471/2004 10 conducted investigation. Even though these witnesses were examined in the trial Court, original bills and indent given to various societies in the Island were not produced in this case. Vital circumstances highlighted by the prosecution in this case is that the entries made in Ext.P4, P4(a), P4(b), P6, P6(a) and (b) are the copies that will not help the prosecution to prove the alleged facts. It is true that some entries were found during verification of Exts.P4 and P6 registers. But, the godown stock and the final stock at the time of verification and the shortage are not properly proved by PW1 and PW9. It is necessary to produce the original bill and indent from the societies under the control of the revision petitioner who supplied articles during the relevant period. The gravity of the irregularity and the lapses on the side of the revision petitioner were not properly established by the prosecution by producing the Crl.R.P. No.471/2004 11 details of actual stock delivered by the revision petitioner. That was the main link connecting the revision petitioner in the alleged crime. A bare analysis of the Section shows that prosecution has to prove that there was falsification of accounts with the intention to defraud by either falsifying account or making of false entry in any of the valuable securities mentioned in the section, but it does not require any injury of property. 9. The importance of proving that the act of the accused was wilful and he possessed the intention to defraud which is an essential element to prove the offence under s.477A, was stated by the Supreme Court in **Harnam Singh** v. **Delhi Administration** . In this case, the accused was a godown keeper of Co-operative Supply and Marketing Society, Andrott. He was prosecuted and convicted for committing offences under s. 477A, IPC, for falsifying certain entries in the register. It was the contention of the accused that he had no intention to defraud, as he had made an entry on the basis of Crl.R.P. No.471/2004 12 receiving indent. In accepting his contentions, the Supreme Court said that 'wilfully' as used in s.477A, meant intentionally or deliberately doing an act. By the mere fact that some entries were made wilfully, it need not necessarily imply that the accused did so with the intention to defraud within the meaning of the section. 10. Apex Court while discussing the words 'Wilfully' and “intention to defraud” u/s.477A settled the law in **S. Harnam Singh** v. **The State (Delhi Admn.)** [AIR 1976 SC ## 2140] and held as follows: “ Wilfully as used in S.477A means “intentionally” or “deliberately” . But from the mere fact that certain entries were made “Wilfully” by an accused, does not necessarily follow that he did so “with intent to defraud” within the meaning of Section 477A, Penal Code. The Code does not contain any precise and specific definition of the words “intent to defraud”. However, the expression “intent to defraud” contains two elements viz., deceit and injury. A person is said to deceive another when by practising “suggesto falsi” or “suppressio veri” or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. 'Injury' has been defined in Section 44 of the Code as denoting “any harm whatever illegally caused to any person, Crl.R.P. No.471/2004 13 in body, mind, reputation or property,” Ingredients of Section 477A pointed.” A close scrutiny of the evidence, it is found that prosecution failed to prove that the accused wilfully made any entries intentionally or deliberately to defraud the society. If that be the position, the conviction u/s.477A is not sustainable. The Courts below failed to appreciate that position and convicted the revision petitioner. In the result, the conviction and sentence passed by the courts below u/s.477A IPC are set aside and the revision petitioner is acquitted and set at liberty. Crl.R.P. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.471/2004 14 Crl.R.P. No.471/2004 15