K.O. Jose v. State of Kerala and others

Crl.A.No.569/2007 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 2ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.569 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CC 8/2003 DATED 28-02-2007 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** ## **APPELLANT/ACCUSED:** - **1 K.O.JOSE** **(FORMER RANGE OFFICER, SOCIAL FORESTRY,, PERUMBAVOOR.)EXPIRED. ADDL. APPELLANTS 2 TO 4 IMPLEADED.** - **2 SHYLA JOSE W/O. LATE JOSE, NOW RESIDING AT THEKKANATH HOUSE, PAZHANGANADU, KIZHAKAMBALALM, ALWAYE.** - **3 JOHN PAUL JOSE, S/O. LATE JOSE, NOW RESIDING AT THEKKANATH HOUSE, PAZHANGANADU, KIZHAKAMBALALM, ALWAYE.** - **4 SOSANNA JOSE, D/O. LATE JOSE, NOW RESIDING AT THEKKANATH HOUSE, PAZHANGANADU, KIZHAKAMBALALM, ALWAYE.** **ADDL APPELLANTS 2 TO 4 IMPLEADED AS PER ORDER DATED 5/2/2016 IN CRL.M.A.3926/2015.** **BY ADVS. SRI.LAL GEORGE SRI.LAL GEORGE SRI.P.K.VIJAYAMOHANAN** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY SPECIAL GOVT.PLEADER SRI.A.RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-112020, THE COURT ON 2-12-2020 DELIVERED THE FOLLOWING:** Crl.A.No.569/2007 2 ## **JUDGMENT** **Dated this the 2nd day of December 2020** The sole accused in CC No.8/2003 on the files of the Enquiry Commissioner and Special Judge, Thrissur is the appellant herein. 2. Prosecution alleged that the appellant while holding the office of the range officer, Social Forestry, Perumbavoor during 1985, submitted vouchers for an amount of Rs.2,45,536.09/- for planting Accassia saplings over an extent of 16.134 Hectares and the money was received by him. The estimated cost of work was quantified as Rs.98,591.11/-. It was alleged that the accused committed criminal misconduct and fraudulently misappropriated a sum of Rs.1,46,944.98/-. It was also alleged that he had forged and falsified several documents and vouchers, and thereby committed the above offence. It was further alleged that the accused comitted offences punishable under section 5 (1) (c) and 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and under sections 409, 468 and 477A of the Indian Penal Code. After investigation, final report was laid. Accused appeared before the court below, pleaded not guilty and contested the proceedings. 3. On the side of the prosecution, PWs 1 to PW 23 were examined. Exts.P1 to P94 were marked. Ext.X1 was marked as Court Exhibit. There was no defence evidence. On an appreciation of the available materials, the Crl.A.No.569/2007 3 Enquiry Commissioner and Special Judge found the accused guilty, convicted and sentenced him to RI for three years and a fine of Rs. 50,000/- with default sentence of six months for offence punishable under Section 5 (1) (c) and section 5 (1) (d) of PC Act, 1947. Similar sentences were awarded for offences under Sections 409, 468 and 477A IPC. No separate sentence was awarded for the offences under section 471 of IPC. 4. Aggrieved by the above conviction , the accused has preferred this appeal. Pending the appeal, the appellant died and his wife and children got themselves impleaded as the additional appellants 2 to 4. They are prosecuting the appeal. 5. Heard the learned counsel for the appellant and the learned Government Pleader for the VACB and pursued the records. 6. The crux of the prosecution allegation was that, during 1985 accused dishonestly and fraudulently misappropriated Rs.1,46,944.98/-, by submitting false vouchers for planting Accassia saplings in 17.09 hectors instead of actual planted area of 16.134 hectares and thereby committed criminal breach of trust, committed forgery by submitting false vouchers and falsification of official records. 7. Defence set up by the accused as is discernible from the trend of cross examination, suggestions made in the cross examination of the witnesses and the reply given by him under section 313 Cr.P.C. questioning was that he was innocent of the crime and falsely implicated. Crl.A.No.569/2007 4 In answer to Section 313 Cr.P.C. questioning, the accused submitted that he had planted saplings in 17.09 hectares and due to enmity of some officers, he was falsely implicated in this case . 8. Facts disclosed that the project was to plant Accassia saplings in Vettoor timber depot having total extent of 61.490 hectares. It lies in three bits. Bit No. 1 had an extent of 36.6125 hectares, Bit No. II had an extent of 25.3375 hectares and Bit No. 3 had an extent of 0.0380 hectares. The project to plant saplings in Bit. no.2 was undertaken by Social Forestry Division of Perumbavoor. Accused was asked to identify vacant places which were suitable for plantation of Accassia saplings. He reported to PW17 on 6/6/1985 the then Assistant Conservator of Forests, that 60 hectares of vacant land was available. Accused was directed to prepare an estimate. He prepared the estimate dated 10/7/1985 for Rs.3,26,000/in Bit No.II in an extent of 50 Hectares. Ext.P7 was the plan prepared by the accused. It was sanctioned by PW14, the Conservator of Forest (Social Forestry), Kollam, for Rs.2,77,720/- by Ext.P41(f) document. Exts.P41 series of documents were proved through PW11. 9. It emerges that the work is normally executed in four stages, survey, demarcation of boundaries, collection of saplings and actual planting of it in the identified land. Pursuant to the sanction granted by PW 14, accused started work. Saplings were collected and made available at his disposal. Saplings were planted. He was paid advance against Crl.A.No.569/2007 5 intends. Ultimately, accused reported that the work was completed and plantation was done in 17.09 hectares of land. Ext.P41(b), Ext. P41(c) and P41(d) are the letters of the accused addressed to the Assistant Conservator of Forest informing about the completion of work. According to the prosecution, along with the completion of execution of work, accused produced Exts.P12 to P39 and Ext.P48 to P55 vouchers, which were passed by PW17. 10. It was later found that the area actually planted was much less than 17.09 hectares. Evidently, the accused had claimed excess amount. The excess amount of Rs.76,283.85/- was remitted by him, evidenced by Ext.P78 and Ext.P82. When doubts were raised regarding the extent of planted area, PW3 was directed to survey the land. After survey, he prepared Ext.P6 plan and he reported that only 16.134 hectares of land were planted with saplings, PW6, the range officer verified the above report and submitted it to the concerned officer. 11. In the course of evidence, prosecution referred to Ext.P7 plan prepared by the accused. Ext.P7 was challenged by the prosecution as unscientific, prepared casually and without any actual survey. The contention of the prosecution was that, it was only a rough sketch prepared by the accused which could not in any manner help identification of the plot with reference to the survey records. On the basis of the valuation adopted in the approved estimate, the cost actually incurred for planting saplings in Crl.A.No.569/2007 6 16.134 hectares was calculated. Prosecution concluded that there was misappropriation of Rs.1,46,944.98/-. 12. To establish the actual extent of land in Bit 2 section as well as area planted with saplings, the prosecution relied on Ext.P2, plantation journal. Exts.P3, P4 and P5 were re-fixing sketches of Bit No.1, Bit No.2 and Bit No.3 respectively. Evidence on record clearly establishes the actual extent of land comprised in each Bits. This was not seriously challenged by the accused. 13. Prosecution alleged that, accused started plantation in the forest area without conducting formal survey. It was pointed out by the learned Special Government Pleader that the first four items mentioned in Ext.P41(a) estimate prepared by the accused himself was for surveying the land identified for plantation. Accused has no case that he had actually got surveyed the land or got it surveyed by a competent person. Evidently, he started the planting of saplings even without any survey and without actually demarcating the area to be planted. PW3 was the Section Forester of Ernakulam Social Forestry Range office during 1995. He deposed that he had visited Vettoor plantation, and prepared Ext.P6 sketch. 14. To establish the project work, PW 14 was examined, who was the then Conservator of Social Forestry, Kollam. He deposed that the Social Forestry Department of Ernakulam was under the supervision of his Crl.A.No.569/2007 7 office. He deposed that estimate for accassia plantation in the division was prepared by the accused himself at an estimated cost of Rs. 2,77,720/- to be planted in 50 Hectares. PW 14 deposed that he had sanctioned the estimate. PW15, the UD Clerk in the Ernakulam Social Forestry Range during 1986 – 87 produced Ext.P41 office file. According to him, on a survey, difference was found in the extent of actual area under plantation. The estimated area was 50 Hectares and the area reportedly planted was 17.09 Hectares. By Ext..P41(I), the Assistant Conservator of Forests had asked the range officer to survey the land. By Ext.P41 (j) letter of the accused, he informed that the excess amount of Rs.65,283.85 received by him was returned, evidenced by vouchers. The excess payment made is evidenced by Ext.P77 (b). 15. PW 16 was the Head Accountant in the Range Office, Social Forestry Division, Ernakulam during January 1986 to July 1986. He proved adjustment Register for the period March 1985 to February 1987. Page 49 of the Register is Ext.P43(a). In the course of examination witness admitted that it was the Assistant Conservator of Forest who used to pass vouchers. He deposed that ACF would disallow the claims which were not allowable. If any claim was disallowed, the officer will be asked to reimburse. To a specific question whether the accused was directed to reimburse any surplus, he pleaded ignorance. PW17 was the Assistant Conservator of Forest of the Ernakulam Social Forestry Division, during the Crl.A.No.569/2007 8 period of 996. Ext.41(a) was the estimate of Veettoor accassia plantation. Accused reimbursed the excess amount drawn, evidenced by Ext.P78 to Ext.P82 chalans. 16. One of the specific contention raised by the learned counsel for the accused was that regarding the extent of land covered by Bit. 2 section, and the area wherein saplings were planted ,there was no counter check up. This seems to be wrong since the actual extent of land is evidenced by Exts.P2, P3,P4 and P5. Witnesses have given evidence in support of it. In the light of the substantial evidence adduced, I do not find any reason to doubt the version of the prosecution regarding the actual extent. The question now remains is whether actual plantation was done in the above area. PW3 is the crucial witness relied on by the prosecution. PW 3 who had prepared Ext.P6 sketch deposed that he had undergone training in survey, during the forest training course. Ext.P6 was prepared by Prismatic survey. He admitted that chain survey was more accurate. He further admitted that if there is a change by one degree in prismatic compass survey, there is likely to be substantial difference in the area and the difference may range from 5% up to 10%. He asserted that he had visited the spot and prepared the sketch. Ext.P6 indicates that except possibility of minor error, nothing else has been brought out to substantially doubt the genuineness and the reliability of the above sketch. On the other hand, even though the witness was thoroughly cross Crl.A.No.569/2007 9 examined, nothing could be brought out to indicate that his survey was wrong and faulty. . 17. On the other hand, accused relied on Ext.P7 sketch. Ext.P7 does not disclose how it was prepared and the details of the measurement were not disclosed. It seems to be a mere rough sketch without any side measurements and cannot be relied on for any purpose. Evidently Ext.P7 is not at all reliable and was rightly rejected by the Court below. Ext.P6 appears to be more reliable. 18. Payment of cash to the accused was evidenced by Ext.P42(a) to 42 (e) and related entries in Ext.P42 cheque Register. Ext.P43 was the advance adjustment register from March 1985 to March 1987. Ext.P44 was the cash book during the above period. Ext.P12 to P39 and Exts.P45 to 57 were vouchers submitted by the accused for the work done. It was signed by the accused and proved through PW11. The above documents cumulatively establish the payment of Rs.2,46,536/-. It seems that the accused has no case that there is any difference in the amount collected by him. PW10 was the Chief Conservator of Forests, (Vigilance). He proved Ext.P40 work files. It reveals various communications revealing actual extent of land planted and the irregularities committed. Ext.P40(c) is the report of the Vigilance Department. It shows that the actual land planted was less than 17.09 Hectares. PW5 is a retired range officer. Exts.P22 to 29 show that accassia was planted in 16.134 hectares. Crl.A.No.569/2007 10 Exts.P3, P4 and P5 are survey sketches which were prepared by Thankappan Pilllai who was a surveyor. PW5 produced it before the Vigilance and was seized by Ext.P11 Mahazar. It seems that the accused did not get the property measured also he had no case that he was an expert in survey. Evidently, the above material establishes that, only 16.134 hectares of land were actually planted with accassia. 19. The prosecution has a definite case that the petitioner submitted false vouchers to claim excess amount . PW 12 was a cooli who identified Exts.P24, 25 and 26 vouchers. He deposed that though he had signed it, he did not get the amounts mentioned in those vouchers. He deposed that he worked in the house of the accused, and had planted saplings. He admitted that he had not worked in Bit 2 section. PW 9 was another cooli who deposed that he had worked in the various accasia Nurseries and had helped in planting. He did not get money for the work done. Evidently, three signed vouchers are available on records. However, the evidence uniformally rejected the case of the accused and confirmed that few workers were made to work without any remuneration. Accused, however, claimed that amount. 20. Having considered these materials on record, I am satisfied that the evidence established that the accused has committed the misconduct and also committed misappropriation. The evidence of the prosecution confirmed that the accused not only misappropriated excess amount by Crl.A.No.569/2007 11 claiming that more extent of land were planted with accassia, further, vouchers were submitted for claiming labour charges, whereas, in fact, such labourers were not paid salary. Evidently, the documents were forged ones. Corresponding entries were made in the registry maintained by him. 21. Learned counsel for the petitioner challenged the prosecution on the ground that it was launched by the prosecution without obtaining sanction under section 197 of Cr.P.C. Learned counsel relied on the decision of this court in _**Rajib Ranjan and others v. R. Vijayakumar (2015) 1 SCC 513)**_ to contend that if the prosecution is not sustainable, it can be quashed at any stage. In the above decision,it was found that the allegations of fabrication of records were mischievously made as afterthought, just to give colour of criminality to a civil case. Further, same were made after losing battle in civil proceedings. Hence, the Supreme court quashed the proceedings. Learned Special Government Pleader relied on a series of decisions to contend that various offences under section IPC are not included as an act of public servant if such an act was done in the course of his official duty or under a colour of post held by him. The Supreme Court in _**S.B.Saha and others v. M.S.Kochar ( AIR 1979 Supreme Court 1841)**_ held that “the sine qua non for the applicability of section 197 Cr.P.C was that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant ether in his official capacity or under colour of the office held by him”. In Crl.A.No.569/2007 12 ## _**Shambhoo Nath Misra v. State of U.P. And others (AIR 1997 SC 2102)**_ it was held that fabrication of records and misappropriation of public money being the allegation, the accused as a public servant, was not done in his official capacity. Hence, sanction for prosecution was not necessary. In **State of Kerala v. Padmanabhan Nair ( AIR 1999 SC 2405)** , Supreme Court held that accused has ceased to be public servant on the date of taking cognizance and hence want of sanction cannot be raised by him. In _**State of Uttar Pradesh v. Paras Nath Singh ( 2009) 6 SCC 372)**_ it was held that sanction for prosecution was not required if the act was not done in discharge of official duty. In _**Punjab State Warehousing Corp. v. Bhushan Chander and Anr. ( AIR 2016 SC 3014)**_ in an appeal filed against conviction, the appellant raised doubt as to whether under Section 197 sanction was necessary for public servant for an offence punishable under section 409 IPC . It was held that sanction was not required since breach of trust was not connected with his official duty. 22. Having appreciated the above facts, I find no reason to interfere with the conviction arrived at, by the court below. However, considering the nature of offence and the entire facts, I feel that the sentence of fine passed by the court below is slightly on the higher side and needs to be modified. Since the appellant is no more, any change in the substantive sentence may not cause any difference. I feel that fine can be slashed to Crl.A.No.569/2007 13 Rs. 5,000/- in stead of 50,000/- ordered by the court below. 23. In the result, appeal is allowed in part. While confirming the conviction, the fine imposed by the court below will stand modified to Rs. 5,000/- . Appeal stand allowed in part as above. dpk **Sd/SUNIL THOMAS JUDGE**