K.S. Nazar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** ## **THURSDAY, THE 9TH DAY OF JULY 2015/18TH ASHADHA, 1937** ## **CRL.A.No. 1049 of 2005 ( )** **--------------------------CC.NO. 27/2001 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR DATED 24-05-2005** **-----------------** **APPELLANT/ACCUSED NO. 1 :** **--------------------------------------------** **K.S.NAZAR, AGED 40 YEARS, FORMER SHOP MANAGER-IN-CHARGE, MAVELI STORE, FORT KOCHI.** **BY ADVS.SRI.P.B.ASOKAN SMT.P.LATHA SMT.A.C.ANITHA SRI.SANU MATHEW SRI.E.A.THANKAPPAN** **RESPONDENT/COMPLAINANT :** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, V.A.C.B., ERNAKULAM, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2015, THE COURT ON 09-07-2015 DELIVERED THE FOLLOWING:** **Mn** **P.UBAID, J. --------------------------------------Crl.A No.1049 of 2005 ---------------------------------------** Dated this the 9[th] day of July, 2015 ## **J U D G M E N T** The appellant herein is the 1[st] accused in C.C. No.27/2001 of the Special Court (Vigilance), Thrissur. He was shop manager-in-charge of the Maveli Store, Fort Kochi during 1996-97. The 2[nd] accused in the case was a helper in the said Maveli Store. On the allegation that the two accused, as part of a criminal conspiracy, misappropriated an amount of ₹ 1,32,666.95 by way of short remittance of sale proceeds of maveli items and non-maveli items and also by way of unaccounted sale of such items, causing shortage of stock, during the period from 30.4.1996 to 26.3.1997, they faced trial before the court below under the Prevention of Corruption Act 1988 (for short 'P.C Act') and also under the provisions of the Indian Penal Code. Crime in the case was initially registered only against the 1[st] accused by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Ernakulam (VACB) on the basis of a report of audit. It is alleged that the two accused misappropriated the amount of sale proceeds of maveli 2 Crl.A No.1049 of 2005 and non-maveli items from the funds of the maveli store without making remittance of the sale proceeds in the bank, and the 1[st] accused did such things with the help and assistance of the helper (2[nd] accused) as part of a conspiracy hatched by them to derive unlawful benefits. On the finding regarding involvement of the helper in the acts of misappropriation done by the 1[st] accused, the VACB submitted final report in court against the two accused. 2. After complying with the procedural formalities the learned Special Judge, (Vigilance) framed a charge against the two accused under Section 13(2) r/w 13(1)(c) of the P.C Act, and also under Sections 120B, 409, 471 and 477A of the Indian Penal Code, to which both the accused pleaded not guilty. The prosecution examined eight witnesses in the trial court, and also marked Exts.P1 to P87 documents. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances, and denied the allegation of misappropriation. The accused did not adduce any evidence in defence. However, Ext.D1 was marked during trial. On an appreciation of the entire evidence, the court below found the 2[nd] accused not guilty of any of the offences alleged in the charge. Accordingly, he was acquitted. But as regards the 1[st] accused, the trial court found Crl.A No.1049 of 2005 3 that the offences under Sections 120B, 471 and 477A IPC are not proved against him. However, he was convicted under Section 13(2) r/w 13(1)(c) of the P.C Act, and also under Section 409 IPC, on the finding that the 1[st] accused had misappropriated an amount of 86,013.90 in respect of maveli items, and 17,227.85₹ ₹ in respect of non-maveli items during the period from 30.4.1996 to 26.3.1997, by way of short remittance of the sale proceeds of those items promptly and properly. As regards the alleged shortage in the stock of maveli and non-maveli items, the trial court found against the prosecution. On conviction, the 1[st] accused was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1,00,000/- under Section 13(2) r/w₹ 13(1)(c) of the P.C Act, and to undergo another period of rigorous imprisonment for one year under Section 409 IPC by judgment dated 24.5.2005. Aggrieved by the said judgment of conviction the 1[st] accused has come up in appeal. 3. The points for decision in this appeal are: (i) Whether the prosecution has proved a case of misappropriation of amount by the appellant by short remittance of the sale proceeds of the maveli and non-maveli items, by misusing his position as manager of the Maveli Store, Fort Kochi. 4 Crl.A No.1049 of 2005 ii) Whether the sentence imposed by the trial court requires interference in appeal, in case the conviction is confirmed. 4. Of the eight witnesses examined in the trial court, PW2 and PW3 are the important witnesses to prove the alleged misappropriation. PW5 is the Deputy Superintendent of Police, VACB, who registered the FIR in this case and PW6 to PW8 are the police officers who conducted investigation. There is absolutely nothing in the evidence of PW6 to PW8 to show that there was any flaw or irregularity or illegality in the investigation. There is absolutely nothing to show that anything done by PW6 to PW8 during investigation had caused any sort of prejudice to the accused. I find on an appreciation of the evidence that investigation in this case was properly and legally conducted, without causing any sort of prejudice to the accused. PW3 is the Assistant Manager of the Taluk Depot of Kochi Civil Supplies Corporation, examined to prove the duties and responsibilities of the Managers of Maveli Stores, and PW2 is the auditor who detected the instances of misappropriation on audit. Crime was registered in this case on the basis of the report of audit made by PW2. Ext.P2 is the audit file, and Ext.P2(a) is the audit report containing the various instances of misappropriation 5 Crl.A No.1049 of 2005 made by the appellant by short remittance of sale proceeds of maveli and non-maveli items. 5. PW3 has given evidence regarding the posting of the appellant as shop manager-in-charge of the Maveli Store, Fort Kochi. He proved Exts.P3 and P4 orders issued by the General Manager of the Kerala Civil Supplies Corporation Ltd. He has also given evidence regarding the instances of misappropriation from the funds of the maveli store by short remittance of the sale proceeds during the period from April 1996 to March 1997. He also proved Exts.P7 to P8 attendance registers, proving that the 1[st] accused was on duty during the relevant period as Manager in the Maveli Store. The 1[st] accused has marked his attendance in the Ext.P8 register upto 22.3.1997. It has come out in evidence that on detection of different instances of misappropriation, by the auditor, the 1[st] accused vanished from the locality, and thus did not co-operate in the process. PW3 has also proved the manual published by the Civil Supplies Department, containing the various duties and responsibilities of the managers of the Maveli Store. He has given evidence specifically regarding Chapter 17 of the Manual contained in Ext.P5. His evidence is that it is the duty and responsibility of the shop manager of the Maveli Store to 6 Crl.A No.1049 of 2005 maintain all the records and issue bills promptly for all sales, and to remit the sale proceeds of a day in the account of the stores on the next day itself promptly. He also stated that the manager of the Maveli Store will be in-charge of and in custody of the sale proceeds of all maveli and non-maveli items and he is responsible to keep the sale proceeds in safe custody till it is remitted in the account. 6. PW3 has also given evidence regarding the relevant entries in the cash book maintained in the Maveli Store, Fort Kochi, and he has also identified the handwriting and signature of the appellant in the various entries including the entries relating to the instances of misappropriation alleged in this case. He has given specific evidence regarding the writings and signature of the appellant in pages 6 to 31 in Ext.P9. He affirmed in evidence that on the dates specified, the sale proceeds of maveli and non-maveli items were not promptly remitted in the account of the store by the 1[st] accused. 7. The evidence of PW4 is regarding Ext.P6 report of transfer of charge, proving that the appellant herein was incharge of the Manager of the Maveli Store during the relevant period. 8. The main evidence is that of PW2, who Crl.A No.1049 of 2005 7 conducted audit of the account of the Maveli Store for the period from April 1996 to March 1997. He proved Ext.P2 file containing the Ext.P2(a) audit report prepared by him. PW2 was the then Junior Manager (Audit) and he conducted audit as directed by the Managing Director of the Civil Supplies Corporation. PW2 has given evidence in detail regarding Ext.P2 (a) report of audit and also regarding the various instances of misappropriation detected by him. The witness has also proved various annexures to the Ext.P2(a) report containing all the details of the sale of maveli and non-maveli items. On thorough examination of the accounts the auditor found out serious irregularities in the maintenance of accounts by the manager and he detected that on various occasions there was failure on the part of the manager to remit the sale proceeds of maveli and non-maveli items in the account of the maveli store. PW2 has given definite evidence regarding the dishonest misappropriation of the sale proceeds of maveli items to the extend of 86,013.90, and of non-maveli items to the extent of ₹ ₹ 17,227.85. 9. The learned counsel for the appellant cited a decision of the Orissa High Court and submitted that in a case like this, the accused cannot be convicted solely on the basis of 8 Crl.A No.1049 of 2005 the report of audit. Here the conviction made by the court below is not merely on the basis of audit report. Ext.P2(a) audit report contained in the Ext.P2 files stands well proved by the auditor who conducted audit, and he has also given definite and consistent evidence regarding all the details of the dishonest misappropriation made by the appellant herein by way of short remittance of huge amount of sale proceeds of maveli items and non-maveli items. True, it is that a conviction is not possible solely on the basis of auditor's report. If the auditor's report is well proved in evidence, and if the different instances of misappropriation are well proved by the auditor, as detected by him on examination of the entire records, including cash book and other registers, the court can definitely convict the accused on the basis auditor's report. The decision cited by the learned counsel is **Hemanta Kumar Patra v. State of Orissa reported in LAWS (ORI)-2012-2-32.** But in this case there is the clear, convincing and satisfactory evidence of PW2 proving all the details of Ext.P2(a) audit report made by him. 10. That part of the evidence concerning the 2[nd] accused, and discussed by the court below in the judgment, need not be further discussed here because the 2[nd] accused already stands acquitted. As regards the allegation of misappropriation 9 Crl.A No.1049 of 2005 by unaccounted sale of maveli and non-maveli items, the trial court has already come to a finding against the prosecution. The finding of the trial court is only regarding misappropriation in respect of the sale proceeds of maveli items and non-maveli items. I find no reason to disbelieve PW2 or reject his evidence proving Ext.P2(a) audit report containing all the necessary details of the different instances of dishonest misappropriation from the funds of the maveli store, done by the appellant herein, by short remittance of sale proceeds of maveli items and nonmaveli items on different occasions. The appellant did not have a case during trial that he had made prompt remittance of the amounts to the account of the Maveli Store, and the accused did not adduce any such evidence proving such remittance. The definite evidence given by PW2 regarding the different instances of short remittance and misappropriation detected by him on audit stands not in any manner discredited. 11. PW3 has proved the signature and writings of the appellant herein in the Exts.P5 to P71 stock registers. Of these documents Exts.P65 and P66 relate to maveli items for the period from April 1996 to March 1997 and Exts.P67 to P69 relate to non-maveli items during the said period. Exts.P70 and P71 stock registers contain the entries made by the appellant Crl.A No.1049 of 2005 10 regarding consignment notes and acceptance of maveli and nonmaveli items during the relevant period. PW3 has also given definite evidence regarding Ext.P72 collection and remittance register relating to the period from April 1996 to March 1997. He affirmed that the appellant herein had not made remittance of sale proceeds of maveli and non maveli items on different dates during the period from 21.11.1996 to 30.11.1996. There is absolutely no reason to reject the evidence of PW2, or to disbelieve his evidence on the material aspects proving short remittance of sale proceeds. 12. I find that the prosecution case stands well proved by the evidence of PW2 and PW3. They have given clear and definite evidence regarding the different instances of short remittance of sale proceeds, thus proving dishonest misappropriation of 86,013.90 in respect of maveli items and ₹ ₹ 17,227.85 in respect of non maveli items, by the appellant herein. I find that the trial court came to the right finding against the appellant herein, and he was rightly convicted. Dishonest misappropriation from public funds, by a public servant, misusing his position as a public servant, will constitute the offence punishable under Section 13(2) r/w 13(1) (c) of the P.C Act, and such breach of trust and misappropriation made by 11 Crl.A No.1049 of 2005 the public servant is punishable under Section 409 of IPC also. I find that the appellant was rightly found guilty and convicted by the trial court. 13. Ext.P2 sanction granted under Section 19 of the P.C Act stands well proved by PW1, the then Chairman and Managing Director of the Kerala Civil Supplies Corporation. There is no dispute regarding the fact that the Chairman and Managing Director of the Kerala Civil Supplies Corporation is the right and competent authority to remove a Manager of the Maveli Store from service. The evidence given by PW4 shows that in the process of granting prosecution sanction he had well applied his mind and perused all the relevant documents and materials including Ext.P2(a) audit report. I find that Ext.P2 prosecution sanction stands well proved according to law. 14. In view of the findings above this appeal is liable to be dismissed. As regards the sentence also, I find no scope or ground for interference because the sentence imposed by the Court below under Section 13(2) of the P.C Act is the minimum possible at that time. The position is different after the amendment brought to the P.C Act in 2014. The sentence imposed by the trial court, being the minimum possible under the law, deviation from the rule of minimum sentence cannot be 12 Crl.A No.1049 of 2005 thought of in the absence of specific reasons and compelling circumstances. Thus the sentence is also liable to be confirmed. In the result, this appeal is dismissed, confirming the conviction and sentence against the appellant in C.C No.27/2001 of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur. **P.UBAID JUDGE** ab