K.A. Ramachandran v. S.I. of Police, CBI, Kochi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **CRL.A NO. 1251 OF 2008** (AGAINST COMMON JUDGMENT IN CC NO.8/2005 OF THE SPECIAL JUDGE(SPE/CBI)-I ERNAKULAM ## **APPELLANT/ACCUSED:** K.A.RAMACHANDRAN SUB POSTMASTER(UNDER SUSPENSION) CHOTTANIKKARA POST OFFICE, ERNAKULAM, S/O.LATE ARJUNAN, MANIYAMPILIL HOUSE, THEKKUMBHAGOM, TRIPUNITHURA.P.O., ERNAKULAM BY ADVS. SRI.T.A.SHAJI (SR.) SHRI.ANWIN JOHN ANTONY SRI.ATHUL SHAJI SRI.S.ABHILASH VISHNU ## **RESPONDENT/S:** S.I. OF POLICE CBI, KOCHI, REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM ## **OTHER PRESENT:** SPL.PP FOR CBI SRI.SASTHAMANGALAM.S .AJITHKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2020, ALONG WITH CRL.A.1253/2008, 1255/2008, THE COURT ON THE 29/6/2021 DELIVERED THE FOLLOWING: Crl.Appeal Nos.1251,1253,1255/2008 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 CRL.A NO. 1253 OF 2008** **AGAINST THE ORDER/JUDGMENT IN CC 9/2005 OF SPECIAL JUDGE SPE/CBI-I ERNAKULAM** ## **APPELLANT/ACCUSED:** K.A.RAMACHANDRAN,SUB POSTMASTER, (UNDER SUSPENSION), CHOTTANIKKARA POST OFFICE,, ERNAKULAM DISTRICT, S/O.LATE ARJUNAN,, MANIYAMPILLIL HOUSE, THEKKUMBHAGOM,, TRIPUNITHURA P.O., ERNAKULAM. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.S.ABHILASH VISHNU SRI.ATHUL SHAJI SHRI.ANWIN JOHN ANTONY ## **RESPONDENT/COMPLAINANT:** S.I.OF POLICE,CBI, KOCHI. REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SPL.PP FOR CBI SRI.SASTHAMANGALAM .S.AJITHKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.202O, ALONG WITH CRL.A.1251/2008 AND CRL.A.1255/2021, THE COURT ON 29/6/2021 DELIVERED THE FOLLOWING: Crl.Appeal Nos.1251,1253,1255/2008 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 CRL.A NO. 1255 OF 2008** ## **APPELLANT/ACCUSED:** K.A.RAMACHANDRAN,SUB POST MASTER (UNDER SUSPENSION), CHOTTANIKKARA POST OFFICE,, ERNAKULAM DISTRICT, S/O.LATE ARJUNAN,, MANIYAMPILLIL HOUSE, THEKKUMBHAGOM,, TRIPUNITHURA P.O., ERNAKULAM. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.S.ABHILASH VISHNU SRI.ATHUL SHAJI SHRI.ANWIN JOHN ANTONY ## **RESPONDENT/COMPLAINANT:** S.I OF POLICE CBI, KOCHI. REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. SPL.PP FOR CBI SRI.SASTHAMANGALAM.S.AJITHKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, ALONG WITH CRL.A.1251/2008 AND CRL.A1253/2008, THE COURT ON 29/6/2021 DELIVERED THE FOLLOWING: Crl.Appeal Nos.1251,1253,1255/2008 4 ## **COMMON JUDGMENT** ## **[CRL.A Nos.1251/2008, 1253/2008, 1255/2008]** The sole accused who stands convicted for offences punishable under sections 13(2) read with section 13 (1) of PC Act,1988 & Section 409, 967,471 & 477(A) of IPC in CC Nos8/2005,9/2005 &10/2005 of the Special Judge(SPE/CBI)1, Ernakulam ,has preferred these separate appeals. 2. The prosecution case was that the accused, who was employed as a public servant as the sub postmaster of Chotanikara post office during the period 2000 to 2003, dishonestly and fraudulently misappropriated or otherwise converted into his own use, huge amounts, by preparing false and forged SB 7 withdrawal vouchers showing the same as genuine withdrawals from the post office savings bank accounts, by forging the signatures of the account holders and the initials of postal assistants, in the said SB 7 withdrawal vouchers. They were passed for payment and the amounts were misused by the accused. Pursuant to the complaints received, crime was registered and in the course of investigation, three separate charges were laid against him for distinct offences made out in the course of the above period. Alleging that, the accused, during the period 8/7/2000 to 27/6/2001 had misappropriated a sum of Rs.1,04,000/- final report was laid. Cognizance of the offence was taken as CC No.8/2005. In C.C.9/2005, the allegation was that by identical methods, the accused had misappropriated a sum of Rs.80,000/- during the period from 23/7/2001 to 1/6/2002. In C.C.No.10/2005, it was alleged that during the period from 27/7/2002 to 19/7/2003, a sum of Rs.3,73,787/- was misappropriated by the accused. According to the prosecution, Crl.Appeal Nos.1251,1253,1255/2008 5 the accused committed offences punishable under section 477A of the IPC read with section 13 (2) read with section 13 (1) (c) of the Prevention of Corruption Act. Before the court below, charge was framed, read over to the accused and he pleaded not guilty. Hence, the matter was posted to trial. All the cases were jointly tried and evidence was recorded in CC No.8/2005. On the side of the prosecution, PWs1 to 23 were examined and Exts.P1 to P 204were marked. There was no defence evidence. On the basis of the available materials, the accused was found guilty of offences punishable under section 13(2) read with section 13 (1) (c) of PC Act and for offence punishable under section 409 IPC. He was also found guilty of offences under sections 471 and 477A of the IPC. He was sentenced to undergo imprisonment for varying period in each of the above case. Aggrieved by the above conviction and sentence, the accused has preferred three separate appeals. 3. Heard the learned senior counsel for the accused and the learned special Government Pleader for Vigilance. Examined the records. 4. The learned senior counsel for the appellant raised a preliminary contention that the procedure adopted by the court below in jointly trying all the three cases was patently illegal and for that reason alone, the conviction was liable to be set aside. It was contended by the learned senior counsel that three separate and distinct charges were raised in each of the above case. Separate points for consideration were accordingly raised in each of the above case. However, as is seen from para 6 of the judgment, all the cases were tried jointly and evidence was recorded in CC No.8/2005. Accused was questioned under section 313 Cr.P.C.and evidence was appreciated on the above cases. Crl.Appeal Nos.1251,1253,1255/2008 6 5.It was contended by the learned senior counsel that each of the above offence was a distinct and separate offence and separate charges were liable to be framed. It was further contended that in the light of a joint trial voluntarily conducted by the court, without any application from the side of the accused voluntarily, the procedure was vitiated and the conviction arrived at by the court below is liable to be set aside on that ground alone. It was pointed out by the learned senior counsel that, each of the allegation, though apparently identical in nature, were distinct and separate, covering different amounts for distinct periods and relating to accounts of different persons. In such a case, each of the offence alleged in each case was distinct, separate and ought to have been separately tried. It was contended that the witnesses examined in each of the case was different and by examining the common witnesses in all the three cases, substantial prejudice was also caused to the accused. 6. To substantiate the above procedural illegality committed by the court below, the learned senior counsel for the accused invited my attention to a decision of the Madras High Court reported in **K.Inbasagaran v. Assistant Commissioner of Income tax ( Laws) ( Madras) 1999 ( 11) page 48** ). That was a case wherein the accused faced trial on an allegation that, he failed to submit his income tax return on or before the prescribed period for different assessment periods. He was proceeded against in respect of three specific charges covering different periods. He was found guilty and convicted. The Madras High Court, before whom the appeal was preferred, noted that though there were three separate complaints against the accused, complaints were not marked. Only one Crl.Appeal Nos.1251,1253,1255/2008 7 of the complaint was brought on record. The other complaints were not available on record. Relying on a Supreme Court Judgment, it was held that the word “distinct” does not mean identical. The word 'distinct' thus characterizes that, two offences would be distinct, if they are not in any manner inter related. The offences for which the accused was sought to be prosecuted in that case, were distinct offences. It was held by the High Court that, section 218 of the Cr.P.C. clearly specified that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. The exception to the rule is found in the proviso which empowers the Magistrate or the court to try together all or any number of charges framed against such person in a single trial, if the accused person makes an application in writing and the magistrate is of the opinion that such accused is not likely to be prejudiced thereby. Section 219 Cr.P.C.empowers the Magistrate to try an accused for any number of offences not exceeding 3, which are of the same kind committed within the space of 12 months from the first to the last of such offences. Section 220 of the Criminal Procedure Code provides that if in one series of act, so connected together and as to form same transaction committed by the same person, he may be charged with and tried at one trial for every such offence. 7. Referring to the various provisions, the Madras High Court held that the procedure adopted by the court was an illegality as distinct from an irregularity. It was held therein that the general rule of trial was that for every distinct offence,there shall be a separate charge and every such charge shall be tried separately except in specified cases referred to in sections 219,220,221 and 223 of Crl.Appeal Nos.1251,1253,1255/2008 8 the Criminal Procedure Code. Framing of one charge in respect of every distinct offence cannot be considered as mere irregularity and the same has to construed as an illegality. 8. In the case at hand, it has to be noted that the accused has been charged with three separate offences in relation to separate amounts allegedly misappropriated and separate documents which were forged. The victims in each of the case is different from the others. Hence, each of the above offence is distinct and specific. When the offences with which the accused are charged are distinct and separate and not in any way inter-related and when each of the offence has no connection with each other, joinder of charges will be bad in law. Section 218 Cr.P.C. Could not be invoked in the absence of any application from the side of the accused. Hence, the proviso also would not apply. The offences cover the period 8/7/2000 to 19/7/2003, evidently exceeding the three years period. Hence, section 219 Cr.P.C.would also not come to the help of the prosecution. 9. Having considered the above, in the light of the legal position, I am satisfied that the procedure adopted by the court below is illegal. It seems that, identical view was taken by the Divsion Bench of this Court in **Joseph Elias Baby v. Sub Inspector of Police, Munnar( 1987 (2) KLT 330).** In that, on a slightly different factual premise, 40 persons having allegedly committed rape on a single victim, faced charges in same proceedings. It was found that failure of justice had not occasioned in that case. The same view was taken by the Supreme Court in **Mohan Singh v.State of Bihar (2011(9) SCC 272))** , the **State of U.P.v. Parasnath Singh (2009 SCR 85)** and **Kamil v. State of U.P.(AIR 2019 SC** ) . All the above Crl.Appeal Nos.1251,1253,1255/2008 9 cases relate to single offence as indicated above, and held that the court shall interfere only if substantial prejudice is caused. 10. In the case at hand, evidently same witnesses were examined in relation to three separate charges. Learned senior counsel for the accused specifically contended that the defence which ought to have been set up in two other cases were disclosed, when he was called upon to cross examine the witness in relation to the first offence. Evidently, it caused substantial prejudice to the accused. 11. It was also contended that in section 313 Cr.P.C. questioning,all the questions put up to the accused were complex, clubbed up, as composite questions and the accused could not effectively give an answer. Another irregularity pointed out by the counsel was that the complainants were not examined in each case. Appreciation of facts show that substantial illegality has been caused in the trial, which goes to the root of a fair trial. Substantial prejudice has thereby occasioned. The incident happened more than 20 years back. Further several witnesses might have expired by now. Due to the long delay in completion of the proceedings, directing the accused to appear before the court below, if remanded, could cause irreparable injury and loss to the accused. It is not mere case of irregularity, but it clearly indicates that the accused had sustained substantial prejudice. It was also stated that at this point of time if the matter is remanded, it will cause irreparable injury to the accused. Further, all the answers that he was supposed to give, have already been elicited and the defence stands exposed. No purpose will be served by remanding the matter, especially when the allegation is basically against him. Crl.Appeal Nos.1251,1253,1255/2008 10 Having considered this, I feel that no purpose will be served by going to the merits of the case. On this ground alone, the conviction and sentence is liable to be set aside. In the result, the appeals are allowed. The accused is acquitted. The bail bond executed by him stands discharged. Sd/- **SUNIL THOMAS,Judge** dpk Crl.Appeal Nos.1251,1253,1255/2008 11 **Sd/SUNIL THOMAS JUDGE**