K. I. Mathai v. Superintendent of Police, VACB, Kottayam and Public Prosecutor

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934 CRL.A.No. 200 of 2001 ( ) ------------------------AGAINST THE JUDGMENT IN CC.34/1999 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR APPELLANT: -------------- K.I.MATHAI, FORMER HEAD CLERK, VAZHOOR GRAMA PANCHAYAT, KOTTACADU HOUSE, KOOTHRAPALLY, KOTTAYAM DISTRICT. BY ADVS.SRI.M.V.BOSE SRI.CHERIAN VARGHESE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: ----------------- 1. SUPERINTENDENT OF POLICE, V.A.C.B., KOTTAYAM. 2. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SMT. V. H. JASMINE, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K. MOHANAN, JUDGE** **- - - - - - - - - - - - - - - - - Crl. Appeal No.200 of 2001 - - - - - - - - - - - - - - - - Dated this the 11[th] day of March, 2013.** ## **JUDGMENT** The first accused in C.C. No. 34 of 1999 of the Court of Enquiry Commissioner and Special Judge, Thrissur is the appellant herein who challenges his conviction and sectence for the offences under Section 13(1)(c) & (d) r/w Section 13(2) of P.C Act and Sections 120B, 409, 468, 471 and 477A of IPC. 2. As disclosed from paragraph 2 of the impugned judgment, the prosecution case is seen as the first accused while working as the Head Clerk holding the charge of the Secretary of Vazhoor Grama Panchayat and the second accused posing as the bidder at an auction said to have been held by the Panchayat, entered into criminal conspiracy during the year 1994 for conducting a fake auction of the trees vested in the Panchayat, without the decision and authorisation of the Panchayat committee and A2 cut down the trees and sold some timber for Rs.600/- and received Rs.300/and the trees were valued at Rs.9993/- and thereby caused a loss of Rs.8843/- to the Panchayat and thereby committed the above offence and during the course of the same transaction, the accused committed forgery of the records and falsified the Crl. Appeal No. 200/2001 : 2 : accounts and knowingly used the same as a genuine documents. On the basis of the First Information Report dated 12.02.1996, VC No.2/1996 of Kottatayam VACB Unit was registered and on completing the investigation, a charge was laid before the court below for the offences under Sections 120B IPC, 13(1)(d) and 13(1)(c) r/w Section 13(2) of PC Act, 1988 and under Section 15 r/w Section 13(1)(d) r/w Section 13 (2) of PC Act and under Sections 409, 468, 471 and 477A of IPC. During the trail of the case, PWs 1 to 16 were examined and Exts.P1 to P24 documents were marked from the side of the prosecution. Ext.D1 was marked from the side of the defence and DWs 1 and 2 were also examined. There was no material object. 3. Accordingly, the trial court finally found that A1 is guilty under Section 13(1)(c) and (d) r/w Section 13(2) of PC Act, 1988. Besides the above, A1 and A2 are found guilty under Sections 120B, 409, 468, 471 and 477A of IPC. But, they are acquitted for the offence under Section 15 r/w Section 13(1)(d) r/w Section 13(2) of PC Act, 1988. On such conviction, the appellant herein who is the first accused, is sentenced to undergo rigorous imprisonment for four years Crl. Appeal No. 200/2001 : 3 : under Section 13(1)(c) r/w Section 13(2) of PC Act, 1988 and in view of the sentence under Section 13(1)(c) r/w Section 13 (2) of PC Act, no seperate sentence is awarded against A1 for the offence under Section 13(1)(d) r/w Section 13(2) of PC Act, 1988 and A1 and A2 are also sentenced to undergo rigorous imprisonment for two years each under Section 120B IPC and A1 and A2 are directed to undergo rigorous imprisonment for four years each and to pay a fine of Rs.25,000/- each and in default to undergo rigorous imprisonment for one year each under Section 409 IPC and A1 and A2 are further directed to undergo rigorous imprisonment for two years each under Section 468 IPC and A1 and A2 are directed to undergo rigorous imprisonment for one year each under Section 471 IPC and A1 and A2 are also directed to undergo rigorous imprisonment for two years each under Section 477A IPC. It is also ordered that the substantive sentence of imprisonment shall run concurrently and set off is allowed. It is the above findings and order of conviction and sentence that are challenged by the first accused in this appeal. Crl. Appeal No. 200/2001 : 4 : 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. After inviting my attention to the judgment dated 13.09.2006 in Crl. Appeal No. 199 of 2001 of this Court which is preferred by the 2[nd] accused in the very same case, the learned counsel for the appellant submitted that this Court has already found that the allegation of conspiracy raised by the prosecution in the present case is not sustainable and accordingly, A2 is acquitted for all the offences alleged against him. Further the learned counsel for the appellant, placing reliance upon the decision of the Apex Court in **Fakhruddin v. State of M.P** reported in 1967 KHC 676 wherin it is held that the offence of conspiracy cannot survive the acquittal of the alleged co conspirators, submitted that the appellant is entitled to get an acquittal by virtue of the above referred judgment of this Court. 6. On the other hand, the learned Public Prosecutor submitted that even though the conspiracy is not proved against the appellant, he is liable to be punished for the other offences independently. Crl. Appeal No. 200/2001 : 5 : 7. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court and also the copy of the judgment in Crl. Appeal No. 199 of 2001 which is made available to me by the learned counsel for the appellant and the judgment of the Apex Court in 1967 KHC 676. 8. The specific allegation of the prosecution against the accused/appellant and the co-accused is that the first accused while working as the Head Clerk holding charge of Secretary Secretary of Vazhoor Grama Panchayat and the second accused posing as the bidder at an auction said to have been held by the Panchayat, entered into criminal conspiracy during the year 1994 for conducting a fake auction of the trees vested in the Panchayat without the decision and authorisation of the Panchayat committee. According to the prosecution, as observed by another learned Judge of this Court, the auction was conducted without authorisation of the Panchayat Committee and the bid amount was Rs.1,500/- and A2 cut down the trees and sold some timber and the trees were valued at Rs.9993/- and thus, according to the Crl. Appeal No. 200/2001 : 6 : prosecution, caused a loss of Rs.8843/- to the Panchayat and thereby committed the offence and during the course of the same transaction, the accused committed forgery of the records and falsified the accounts. 9. Another learned Judge of this Court, in the above referred judgment found and observed that PW1 Panchayat Director was examined to show that he has accorded sanction for the prosecution of A1 and PW2 Deputy Director of Panchayat proved Ext.P3 circular showing the procedure to be adopted for cutting and removing the trees and he also stated that A1 was the custodian of the trees. It is also found that PW3, then President of the Panchayat proved Ext.P4 Minutes of the Panchayat. It is specifically found that according to PW3, Resolution No. 25 for auctioning 14 trees incorporated as Minutes of the Committee was cancelled and according to him what was auctioned was for cutting and removing three trees; but 14 trees were cut. It is also found that DW1 was a member of the Ward who is also a signatory to Ext.P4 minutes. According to him, there was no cancellation of the Minutes as stated by PW3. Only after the bid was accepted and after due payment to the Panchayat, A2 started the work. After Crl. Appeal No. 200/2001 : 7 : considering the entire evidence and materials on record, another learned Judge of this Court found that there is no evidence to show that there was any criminal conspiracy or any understanding between A1 and A2. It is also found that there is no evidence to show that A2 has done anything with cancellation or correction of minutes and therefore, he cannot be convicted under Section 120B of IPC. It is also found that the evidence adduced would show that public auction was conducted and A2 was the higher bidder. According to me, the above finding would further shows that there was a valid auction especially in the absence of any contra evidence. The finding of this Court in the above referred appeal that A2 was the higher bidder pre-supposses that there was proper minutes and auction of which A2 was the highest bidder. The crux of the prosecution allegation is that A1 manipulated the minutes to show that there was a valid resolution, though resolution No.25 was cancelled by PW3, the Panchayat President. But in the present case, from the evidence of DW1, it can be seen that resolution No.25 was not cancelled and no legally recognised procedure was adopted by the Panchayat to cancel resolution No.25. Therefore, according to me, the pivot Crl. Appeal No. 200/2001 : 8 : of the prosecution allegation against the accused that the accused forged the document goes and if once the main plank of the prosecution case is broken, the prosecution cannot restructure the same, especially in the present case when a learned Judge of this Court held that no conspiracy is committed. If that be so, extending the benefit of doubt and relying on the judgment of this Court dated 13.09.2006 in Crl. Appeal No. 199 of 2001, whereby the co-accused is acquitted, I find that the appellant herein is also entitled to get an acquittal. In the result, this appeal is allowed setting aside the judgment dated 17.02.2001 in C.C. No. 34 of 1999 of the Court of Enquiry Commissioner and Special Judge, Thrissur and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. ## **sd/- V.K. MOHANAN, JUDGE.** ## **rv** /True Copy/ P.A to Judge. Crl. Appeal No. 200/2001 : 9 : **V.K. MOHANAN, JUDGE -----------------------------------Crl. Appeal No. 200 of 2001** **------------------------------------Dated this the 11[th] day of March, 2013** **JUDGMENT** Crl. Appeal No. 200/2001 : 10 :