S. Joseph v. State of Kerala

Crl.Appeal No.2165/2006 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** **CRL.A.No.2165 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 35/2002 DATED 18-10-2006 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE,THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **S.JOSEPH AGED 68 YEARS S/O SCARIAH ,THAYYIL HOUSE, THENMALA VILLAGE,, KOLLAM DISTRICT., (FORMERLY MEMBER OF THENMALA PANCHAYAT,, WARD NO.IX).** **BY ADVS. SRI.K.P.JAYACHANDRAN SRI.M.SREEKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SPL.GP SRI.A. RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2020, THE COURT ON 03-11-2020 DELIVERED THE FOLLOWING:** ## **JUDGMENT** Dated this the 3rd day of November 2020 This appeal is preferred by the sole accused who stood trial in CC No.35/2002 of the Enquiry Commissioner and Special Judge, Thriuvananthapuram for offences punishable under section 13 (2) read with section 13 (1) (c) of the Prevention of Corruption Act (herein after referred to as “ the PC Act”) of 1988 and Section 409 IPC. 2. The appellant was the elected representative of ward No. 9 of Thenmala Panchayath during the period from 1988 to 1995. He was selected as the convenor for carrying out three different development works in the Panchayath under the Jawahar Rozgar Yojana Scheme. They were 1).improvement of Nalpathamkutty – Kariyara road from 40[th] mile of QS to Kariyara Junction (hereinafter referred to as the disputed road) 2). Construction of three culverts in the above road and 3). Construction of two class rooms and a well for Ottakkal Welfare L.P.Schol. The estimated costs were Rs.86,583/-,Rs.1,05,000/- and Rs.78,000/- respectively. A total sum of Rs.64,500/- was released as advance to the accused by four cheques dated 21/3/1990, 30/3/1990, 31/3/1990 and Crl.Appeal No.2165/2006 3 18/6/1990. He was also given 7,661.90 k.gs of rice valued at Rs.14,809/-. Thus total advance released was Rs.79,039/-. The work related to class rooms and well, was originally entrusted to PW5, another member of the Panchayat by named Celin Babu, who was also the then Vice President of the Panchayat. She had received Rs.15,000/- as advance. Since she did not complete the work, she was removed from the convernorship and the petitioner was entrusted with the work by resolution of the Panchayat dated 26/6/1990. Hence, PW5 paid Rs.12,770/- to the appellant and handed over the vouchers for the remaining amount of expenses incurred by her. The prosecution allegation was that thereafter the accused did not do the work nor did he repay the amount received as advance and misappropriated it by converting it for his own use. On the basis of the complaint received, crime was registered. After investigation, final report was laid, alleging that the appellant being a Panchayat member and hence a public servant committed various offences under the Prevention of Corruption Act . Since the accused had ceased to be a panchayat member at the time of filing the final report, sanction under the PC Act was not sought by the investigating agency. Crl.Appeal No.2165/2006 4 3. Final report was taken on file by the Trial court and summons was issued to the accused. He appeared and denied the allegations. On the side of the prosecution, PW 1 to PW30 were examined and Exts.P1 to P53 were marked. On the side of the accused, DW1 to DW4 were examined. The court below, on the basis of the available materials, found the appellant guilty under section 13 (2) read with section 13 (1)(c) of PC Act, convicted and sentenced him to undergo RI for three years and to pay a fine of Rs.10,000/-. In default of fine, he was directed to undergo RI for six months. Regarding section 409 IPC, it was held that to invoke that provision, the accused should be a public servant as defined under section 21 of the IPC. Since the appellant did not fall within any of the category mentioned in Section 21 of the IPC, he was held to be not a public servant under the Act and hence section 409 IPC was found not applicable to the accused. However, the Court found that ingredients of a lesser offence of Section 406 IPC was available and being a lesser offence, the court below held that the accused was guilty of offence punishable under section 406 IPC, convicted him and sentenced him to undergo RI for one year and to pay a fine of Rs.5,000/- and in default, to undergo RI for Crl.Appeal No.2165/2006 5 three months. Aggrieved by the conviction and sentence, the accused has preferred this appeal. 4. Heard Sri.M.Sreekumar, learned counsel for the appellant and Sri.A.Rajesh, learned Special Government Pleader for the Vigilance. 5. It is an admitted fact that the accused was a member of Thenmala Panchayat during the relevant time and was entrusted with three works as mentioned above in his capacity as the convenor of the committee for implementation of the above three schemes. It is also not in dispute that he has received advance by way of cash as stated by the prosecution. However, he vehemently denied the allegation that he had received 7661.90 kgs of rice. It was also contended by him that he had completed the work relating to the road. However, due to heavy flood and landslide in 1992, several roads and culverts in the Panchayat and in the nearby areas were washed away. The work done by the appellant on the disputed road also got damaged. He had dug the well and constructed the culverts as directed. Though this was informed to the Panchayat, several unnecessary issues were raised and the engineer did not inspect the work Crl.Appeal No.2165/2006 6 and it was not assessed. The specific and precise contention of the accused was that he had completed the entire works, but did not receive the balance amount due to him. 6. The defence set up by the accused, as disclosed from the trend of cross examination was explained by him in answers in reply to the questioning under section 313 Cr.P.C. According to the accused, he had done all the works. He had requested the Panchayat committee and the Block engineer to conduct inspection and to carry out the measurement of all the works done under the JRY Scheme including that of the work undertaken by him. Since no action was taken, representation was given to the District Collector and to the Government by the Panchayat committee. That is recorded in the minutes of the Panchayat. Only after 1995, measurement was taken. For measuring the work carried out by the accused, the assistant engineer had demanded huge amount as bribe, which the accused could not afford to pay. Claiming that the accused had submitted representation to the Government, a copy of the representation was sent to the Revenue Commissioner, but no reply was received. The foundation of the class rooms were laid. Crl.Appeal No.2165/2006 7 He had also unloaded granite and bricks for completing the works. Since neither the engineer nor the overseer visited the place, he could not complete that work also. He had also dug a well in the site located by the engineer. Even after digging to a depth of 8 meters, water was not seen though rock was found. He was informed that measurement will be taken only if water was found. He had completed the earth works of the road, and culverts and materials for further works were unloaded. Receipts of the items purchased and muster roll of the workers were also entrusted with the Panchayat. The block engineer had taken the measurement of each of length of 10 meters before the work had commenced and they were recorded in the M- Book. Advance was paid in installments, after the Panchayat was satisfied each time about the progress of the work done. The work done by accused could not be got measured only because he could not pay bribe to the officers. 7. Perusal of the defence set up by the accused shows that, even according to him, the earth work of the road was completed, but it got washed away due to unprecedented rains, floods and landslide. According to him, he had dug the well and laid only the Crl.Appeal No.2165/2006 8 foundation for the two class rooms. Accused had no case that he had constructed the class room above the foundation level. He shifted the entire burden to the Panchayat and the engineer, by contending that they had demanded bribe which he could not pay. By claiming that he has not completed the entire works, the accused attributed responsibility for non performance of the contract on other officers. It seems that he has a slightly in consistent defence. Some where he contends that he completed the entire works. However, he has a case that class rooms were not completed. 8. Learned counsel for the accused vehemently contended that even from the available materials, there are enough indications in the prosecution evidence itself that the accused had completed the works relating to the road, well and the foundation work of the class rooms. According to him, there was sufficient evidence to establish that, during 1992, there were heavy floods and landslides, which resulted in washing away of the earth work done in connection with the disputed road. It was contended by the learned counsel that the panchayat had given the advance in installment, which is admitted by them. Crl.Appeal No.2165/2006 9 According to the deposition of the executive officers of the Panchayat, additional advance amount are released only after the Panchayat was satisfied about the progress in the work. Hence, the prosecution cannot be heard to contend that no work was done by the accused, it was argued. Though accused stated that even the Panchayat committee was aware of his works and the Panchayat committee minutes would disclose that he had completed the work, he had not produced the copies of his representation or to taken steps to cause the production of Panchayat minutes to substantiate his defence. Further, though he stated that , he had personally complained to the committee and also that he had complained to the Government and the Revenue Commissioner, absolutely no evidence was produced to substantiate the above defence. 9. With the above defence of the accused kept in mind, the prosecution evidence has to be analysed to find out whether they had succeeded in establishing the allegation against the accused beyond reasonable doubt. Admittedly, the entrustment of three works and payment of advance in cash is admitted by the accused. The prosecution essentially relied on the oral evidence of Crl.Appeal No.2165/2006 10 PWs 1 to 6, PWs 8 to 11, PW13, PW14, PW18, PW22, PW23, PW24, PW25 to establish the allegations against the accused. 10. Among the witnesses who are referred above, PW6, PW8, PW10, PW11 and PW14 are the officers of the Block and DRDA. PWs 4,5 and 25 are respectively the Panchayat members and a resident of the Panchayat. PW2 is a private person. PWs 1 to 3, PW9, PW13, PW18, PW22 and PW24 are the officers of the Thenmala Grama Panchayat. 11. PW3, the work supervisor of the Grama Panchayat had deposed in detail regarding the process of allotting the contract. According to him, after the convernor is elected for conducting the work under JRY Scheme, an agreement will be entered into, between the convenor and the Grama Panchayat. Thereafter, it is the duty of the convenor to bring the assistant engineer to the site to get the work set out. If advance is required, it would be released as per the norms. Thereafter, the advance sanctioned will be released in installments subject to the progress in work. Each time when request is made for advance, the assistant engineer will measure out the work done and report. After completion of the work, the final measurement will be taken Crl.Appeal No.2165/2006 11 and entered in the M Book. Thereafter, the final bill is prepared. 12. Regarding the process of releasing the money on completion of the work, PW8, the project officer of Kollam DRDA during the period 1995, has tendered evidence. According to him, on completion of the work, commencement of the project will be informed to the assistant engineer and the block development officer. On the basis of this information, the assistant engineer will measure the property, enter the details in M Book, prepare the bill and thereafter it will be forwarded to the Assistant Executive Engineer to conduct the measurement. Thereafter, it will be forwarded to the Panchayat for payment. According to PW8, it is the duty of the convenor to get the work done measured, with the assistance of the Assistant Engineer, Assistant Executive Engineer, Block Development Officer and the Project officer of DRDA. 13. The above procedure, as tendered by PW3 and PW8, is not seen challenged in the cross examination. PW1, the Secretary of the Grama Panchayat during the relevant time, gave evidence touching upon the entrustment of the works and advance paid. He asserted that the work was not done by the Crl.Appeal No.2165/2006 12 accused. According to him, recovery proceedings were initiated for recovery of the advance paid. He asserted that if the work had been done, definitely measurement would also have taken place. PW3 gave oral evidence touching upon the entrustment of work as above. He also stated that advance of Rs.64,500/- was paid in cash and 7661.90 kg of rice was also given to the accused. Receipt of rice is seen, recorded in Ext.P4(b). He deposed that the work was not completed as agreed and hence revenue recovery proceeding for Rs.57,600/- was initiated. 14.PW2 was the President of the Poura Samithi. According to him, accused did not complete the work of the disputed road. He completed only the earth work and tarring was not done. He also asserted that culverts were not completed. The class rooms were not completed and even though the well was dug water was not available. He stated that thereafter, the second well was dug and still water was not found. However, he turned hostile regarding the other aspects and was confronted with his previous statement. According to him, the work of the class rooms and well were done for an approximate sum of Rs.20,000/-. He asserted that during 1992 period, the area was not affected by Crl.Appeal No.2165/2006 13 flood. However, he added that during rainy season, if floods occur, it may affect the roads. Roads may be washed away and culverts may also get damaged. However, in the re-examination, he was made to admit that he had not seen the class room or the well and he gave evidence without direct knowledge. 15. PW4, who was the Panchayat member during the relevant period gave evidence touching on Ext.P5. According to him, pages 174 to 175 of Ext.P5 relate to the work entrusted with the accused. He gave evidence to the effect that, the works were entrusted with the accused and he did not complete the work in relation to Ext.P5. He was declared hostile and confronted with the earlier statements. However, he admitted that the accused did not construct the culverts and he was removed from the JRY Scheme, by a resolution of the Panchayat. He also admitted that revenue recovery proceedings were initiated against the accused for non completion of the work. He stated that due to the non completion of the above works, no new JRY projects were allotted to the Panchayath. 16. PW5, Celin Baby, who was a Panchayath member, admitted that she was entrusted with the work of school and well. Crl.Appeal No.2165/2006 14 She could not complete that work. From Rs.15,000/- received by her as advance, she entrusted Rs.12,770/- in cash and gave vouchers relating to the expenses incurred by her in respect of the work. Ext.P13 receipt was issued to evidence the receipt of it. She also supported the prosecution case and asserted that the works entrusted with the accused were not done . She referred to Ext.P35(a), the report about the work of the road. The report indicates that the work related to the road was commenced in 1990 and discontinued in 1990 itself. The defence set up by the accused that he had done the work till 1992 and due to floods work done by him got washed away seems to be contrary to the above evidence. 17. PW6, was the Block Development Officer during the relevant period. He gave evidence touching upon Ext.P35 file relating to the above Scheme kept in the Anchal Block office. He had referred to Ext.P35(a), the report prepared by him and given to DRDA, Kollam,relating to the misuse of JRY funds. He had gone to the spot and on the basis of his personal enquiry, the above report was prepared. PW7 generally tendered evidence in tune with the version of the other witnesses regarding the Crl.Appeal No.2165/2006 15 entrustment of works to the accused and non completion of the works allotted. However, his evidence does not appear to be very convincing, since he had admitted that he has no direct information about the facts disclosed by him in the chief examination. 18. Ext.P16 file, relating to the works of the disputed road was dealt with by CW37, who had died. Hence, PW9, who was conversant with the handwriting of CW37 was examined. He asserted that he was conversant with the handwriting of CW37 and referred to Ext.P16(a) letter of the Panchayat Executive Officer to the accused dated 20/11/1990, informing that the work of the class rooms were not commenced even after receiving the advance. The accused has no case that CW37 had replied to the above letter. It also demolished the case set up by the accused that though he had done the work, the concerned engineer did not co-operate with him to get the work measured. Ext.P16(c) to Ext.P16(f) are the receipts evidencing the receipt of advance. Ext.P19 (a) was the agreement executed between the Panchayat Executive Officer and the accused. Ext.P19(b) was the details of the estimate. Crl.Appeal No.2165/2006 16 19. PW10, who was the higher Grade Assistant Engineer of the Anchal Block Panchayat, who retired in 1992, was examined to support the prosecution case. He had deposed that he knew that three works were entrusted to the accused. However, no work was done by him. It was asserted that neither he nor his assistant engineer had set out the site for the three works. His version was that after setting out the work, assistant engineer would visit the spot and supervise the progress. That would be reported to BDO. He deposed that there was no progress in all the three works. He also asserted that the accused had not met him nor requested to set out the work. It was suggested to him in the cross examination that, since he refused to set out the work, it was got done by his successor and work was completed. This suggestion was dined by the witness. 20. PW11 was the assistant executive engineer, DRDA, Kollam during the period from 1/1/1989 to 24/8/1990. He had granted technical sanction for the work in relation to classroom and well, for an estimated amount of Rs.78,000/-. He also asserted that the records did not indicate that he had inspected the site thereafter. He also had given technical sanction for the Crl.Appeal No.2165/2006 17 two works. Referring to the records, he stated that during his period, work was not done by the accused. 21. PW12 was the Assistant Engineer of Anchal Block Panchayat during the period from 1998 – 2004. He got a complaint about the non payment of the amount to the accused for the works done in relation to the disputed road work. PW12 deposed that, on the basis of the complaint, he asked the Panchayat to produce the level field book. It was informed by the Panchayat that it was kept in the Block office. Though he got it searched in the Bock office, no such records were seen. On the basis of it, it was deposed that no work was done in relation to the disputed road. PW13 was the executive officer of Pathanapuram Grarma Panchayat during the period from 1992 to 1996, and held the additional charge of Thenmala Panchayat during the period from 7/6/1995 to 19/8/1995. Ext.P4 is the file relating to JRY Scheme of Thenmala Panchayat. Ext.P43, related to the disputed construction. It indicated that advance of Rs. 79,039/- was released to the accused. The witness further deposed that in July 1995, a notice was sent to the accused to return the advance money received for the disputed road with Crl.Appeal No.2165/2006 18 interest. There was no reply to it. Through him, Ext.P37 (a) letter to the Kollam District Collector was issued by the Thenmala Panchayat requesting to initiate revenue recovery proceedings against the accused. 22.The above versions were sought to be corroborated through the version of PW14, who was the assistant engineer of Anchal Grama Panchayat during the period from 30/6/1988 to 10/1/1991. The accused had met him in his capacity as a convenor of three works. Through him, Ext.P38 file relating to construction of two class rooms and digging of well was marked. Ext.P38 file was kept in the Anchal Block office. He deposed that the work of the class rooms and well was set out from the office. He stated that the location of the well was pointed out. At that time, PW5, Celin Baby was the convenor. Witness deposed that, since she did not do any work, the work was entrusted to the accused. According to the witness, after entrusting the work to the accused, he had not set out the site. He asserted that the accused did not do any work during his period. According to him, the accused did not even start the work of the school room and digging of the well. Ext.P39 is a file relating to the construction Crl.Appeal No.2165/2006 19 of road kept in the BDO office. It indicated that road was 1.510 meter long road. As per the work, it was to be widened to 8 meters. According to the witness, the work consisted of side ceiling, side filing, construction of drainage, laying of boundary stone and laying of road and surface. Witness deposed that initial level of the road work was taken on 20/3/1990 in the presence of the accused and overseer. Ext.P36 was the plotted sheets showing the initial levels and the works which were proposed to be done. In the cross examination a suggestion was put to him that the accused had met him and requested him to take measurement. This suggestion was vehemently opposed by the witness asserting that the accused did not do any work. A specific suggestion was put to him that the well was dug by the accused and water was not available, which was denied by the witnesses. Witness deposed that the work was not done. It was also suggested to him that the road was constructed, but was washed away during floods in 1992. This was also denied by the accused. PW15, the block Development Officer of Anchal Block during the period from 6/7/1990 to 2/10/1991, with reference to Ext.P40 relating to construction of three culverts deposed that, the accused had not done any work. This version was Crl.Appeal No.2165/2006 20 corroborated by PW16, who was the junior Superintendent of Thenmala Grama Panchayat. He also asserted that though three works were entrusted to him, neither did he do work nor he returned the advance money. He also stated that revenue recovery proceedings were initiated. This witness was not cross examined by the accused. 23. PW 17, who was the Assistant Engineer of the Kollam DRDA, identified the signature of one Baduruddin in Ext.P40m who was earlier the Assistant Engineer and had expired. PW18 was the Special Grade Secretary of the Thenmala Panchayath from 15/8/1995 to 13/12/1996. He asserted that advance was received by the accused. Since the work was not done by the accused, Panchayat by Ext.P15 resolution resolved to recover the amount from him and to remove him from the convernorship. He also referred to Ext.P15(d) and letter written to the accused requesting to initiate revenue recovery proceedings. Ext.P17 (b) was the resolution of the Panchayath resolving to launch recovery of advance released for construction of three culverts on an allegation that it were not construed by the accused. Ext.P17 (a) was the letter written to the District Collector to recovery the Crl.Appeal No.2165/2006 21 amount by revenue recovery proceedings. Witiness supplemented the above document by stating that though three works were entrusted to the accused, accused did not do any work. In cross examination, he denied the suggestion that the work was completed. PW19 was the Assistant Engineer of Pathanapuram Block Panchayat from 1990 to 1991. He also asserted that the work was not set out by him to the accused since there was no request from the accused. He also asserted that without setting out the field, no work could be done. Ext.P43 was the file in relation to the work done by the accused which was marked through PW21, the project officer of the DRDA, Kollam. PW22, who was the Executive Officer of the Thenmala Grama Panchayat during the period from 29/6/1987 to 17/4/1990, gave evidence touching on the various payments made to the accused as advance. He also asserted that 7661.90 kgs of rice was given to the accused. He accompanied the Panchayat President, accused and another Panchayat member by name Gopi to godown of FCI at Karunagapalli. They produced Ext.P24 (a) the release order. Ext.P24 (e) was the report about the progress in relation to various works in Thenmala Panchayat. Witness referred to item Nos. 6 and 7 which related to the Crl.Appeal No.2165/2006 22 construction of disputed road and class rooms. 24. A portion of the evidence of PW22 was heavily relied on by the learned counsel for the accused contending that version of PW22 was sufficient to establish his defence that he had completed the entire work as per the schedule. It is true that in Ext.P24(e) item Nos. 6 and 7 had indicated that the work was in progress. Relying on this, learned counsel for the accused contended that, the Panchayat Executive Officer had inspected and was satisfied about the progress of the work and hence, it was recommended that advance may be released to the accused.This explanation, though in favour of the accused, lost its credence in the remaining part of the examination. According to the witness, he wrote that the work was in progress since he had seen that some road works were going on, when he accidentally went along that road. However, he admitted that he had not seen the work in relation to the school. Based on that information, he reported that works were progressing. He admitted that, he had not visited the road thereafter. He could not give the details of the construction made, height and width of the road. He could also not explain as to when the work was Crl.Appeal No.2165/2006 23 completed. He also admitted that he had not seen the work in relation to the school. He deposed that he gave such a report only as a route matter, since he apprehended that if there was no progress in the work, he will be held responsible. 25. Evidently, the above version of PW22 in the context of progress in work reported in his report is also negatived by all the oral evidences of several other witnesses. Hence, I find that no credence can be given to the report of PW22 to the limited extent that the work was in progress. Further, even regarding the school, which he had admittedly never visited, he has reported that work was in progress. 26. The executive officer of the Thenmala Grama Panchayat, during the relevant period when examined as PW23, deposed that three works were entrusted with the accused after administration and technical sanction was granted. He asserted that till January 1991, the work of the road was not set out and the accused did not do any work for the amount received as advance. PW24, who was the Executive Officer of the Grama Panchayat from 17/4/1990 to 10/12/1990 referred to Ext.P20(m) which was a letter issued by PW24 referring to the work done by Crl.Appeal No.2165/2006 24 PW5. He deposed that the details of the work done by the accused was not given to the Panchayat since no such work was done. 27. PW25, was the Grama Panchayat President during the period February 1988 to February 1995. He deposed that though the accused was entrusted with three works, only some earth work in relation to the road was undertaken, measurement was not taken. According to the witness, whether work was done by the accused was without the consent of the concerned engineer. He did not do any other work in relation to the other two projects. He asserted that the advance was released to the accused. He had also received rice worth Rs.14,809. According to the witness, he was in overall supervision of the construction. He also admitted that advance money was paid by him but he justified himself by asserting that it was done with a good intention to get the entire work done at the earliest. He denied the suggestion that, during the floods, the road was washed away. However, he admitted that the drain along the road got damaged during rainy season. However, he further asserted that there was no flood in Thenmala, since it is a hilly area. He denied Crl.Appeal No.2165/2006 25 the suggestion that few persons got drowned during flood in his ward. However, he admitted that during the year 1992, there was huge floods. According to him, though the accused dug the well at two places, water was not found and hence accused was removed from the convenership. 28. The evidence of the above witnesses clearly established that three works were entrusted with the accused. He had received the advance, but the work was not done except some works relating to the road. None of the documents produced reveal the completion of any work by the accused. 29. As indicated above, most of the prosecution witness have uniformally asserted that, the accused after receiving the advance, failed to do the work. It has also come on record that there is absolutely no evidence available in the records maintained in the Panchayat office, Block Office or the DRDA office to support the accused that he had made certain constructions and that it was indicated the advance paid to him. Evidence produced by the prosecution establish that works were not set out by the officers, nor any request was made by the accused for setting it out. It is also seen from the records that Crl.Appeal No.2165/2006 26 versions spoken by the defence witiness were totally in consistent among themselves and also with the materials on record. There is absolutely no material to show that the road was constructed and that it was washed away during flood. Regarding the flood, there seems to be totally divergent evidence. All the prosecution witnesses denied the suggestion that the disputed road was washed away due to heavy floods. PW1 in his evidence asserted that there was no flood at all. PW3, PW4, PW7 asserted that roads were not washed away in 1992. PW4 only stated that floods of 1992 was one of the biggest. However, Ext.P16(a) letter was issued to the accused, warning him that there was no progress in the work. It was not replied. It has come on record that after undertaking some work in 1990, the accused had abandoned the work that year itself. Defence evidence also will not help accused in any manner. 30. The learned counsel for the accused vehemently contended that 7661.9 kg of rice was not received by him. On the other hand, the prosecution relied on the oral evidence of PW3, PW22 and PW25 to establish that the above quantity of rice was delivered to him. According to the learned counsel, though Crl.Appeal No.2165/2006 27 there is some evidence to show that rice was received from the FCI godown,there is absolutely no material to show that it was delivered to the accused. PW3 in his evidence had asserted that 7661.90 kgs of rice was delivered to the accused. It is evidenced by Ext.P4 receipt. PW22, the executive office of the Panchayat, deposed that the above quantity of rice was given to the accused. He deposed that himself, the Panchayt president, one Gopi a Panchayat member and the accused had gone to Karunagapalli godown of FCI with Ext.P24(a) release order . PW25 deposed that Panchayat had released rice worth Rs.14,809/- to the accused. It was received by him. Evidently, there is sufficient evidence to show that the above quantity of rice was released to the accused and was actually received by him. 31. To establish the case of the accused and to demolish the prosecution case, accused relied on the oral testimony of DW1 to DW4. It seems that on major aspects, the version of DWs 1 to 4 were divergent as well as contradictory to each other also. Even though DW1 generally stated that work was completed, no corresponding entries were available in the M Book and is not supported by the oral evidence of most of the Crl.Appeal No.2165/2006 28 prosecution witnesses. DW1 and DW4 though deposed that works were done by the accused, they admitted that they have not verified with any of the records kept by the statutory authorities. DW2 and DW3 deposed in relation to the construction of class rooms. They submitted that some works were done. According to DW2, foundation work was done. But evidently their version indicated that the super structure was constructed. There is also no convincing evidence regarding the construction of culverts. Regarding the well, there are divergent versions. Few prosecution witnesses and one defence witness deposed that two wells were dug. However, even according to accused, he had dug only one well. 32. According to DW2, two wells were dug. After digging of the first well, since water was not found, another well was dug. Water was not available in that also. PW3 also corroborated the above version. However, it is seen that the accused himself had no such a case. According to him, he had dug the well, but water was not available. However, he was entitled for the payment. Evidently, the version of DW1 to DW4 do not in any manner enhance the defence set up by the accused. Crl.Appeal No.2165/2006 29 33. Learned Special Government Pleader contended that once the prosecution succeeds in establishing the entrustment, no further evidence need to be adduced to show how it was misappropriated or misused by the accused. Once the entrustment is established, it is the duty of the accused to establish that the amount has been properly spent. To buttress this argument, learned special government pleader relied on the decisions of the Supreme Court reported in **Jaikrishnadas Manohardas Desai and another v. State of Bomaby(1960 Crl.L.J.1250)** and in **Bhargavan Pillai v. State of Kerala (2004 KHC 655)** . It was held that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. This view was followed in **State of H.P. v. Karanvir (2006 Crl.L.J.2917)** and by a single Bench of this Court in **Vijayakumar v. State of Kerala (2016 (2) KLD 498)** . Evidently, in this case there is overwhelming evidence to show that advance was paid. However, there is absolutely no material to prove that the amount was properly utilised for the purpose for which it was given. Crl.Appeal No.2165/2006 30 34. Having considered the entire facts, I am inclined to hold that the prosecution has succeeded in establishing the entrustment of work and payment of advance and that works were not done as agreed. Necessarily, the conclusion is that it was misappropriated by the accused. Accordingly, finding of the Court below that the accused has committed offence punishable under sections 13 (2) read with section 13 (1) (c) of the PC Act will stand confirmed. Further the finding arrived at by Court below for convicting the accused for offence under section 406 IPC is also supported by evidence and hence is liable to be confirmed. 35. However, it was forcefully submitted by the learned counsel for the accused that the accused is a very aged person, is suffering from various ailments, bed ridden and has suffered memory loss. Records shows that he was 70years in October 2006. If in fact, he has lost memory,it is a matter that ought to have been placed before the appeal is taken up for hearing. Such a submission was made after hearing was completed. To substantiate it, no documentary evidence was also placed. If the case of the learned counsel for the accused that he has lost his Crl.Appeal No.2165/2006 31 memory is true, it will be open to the appellant or on his behalf to make a application under section 432 Cr.P.C.before the appropriate authority. 36. Hence, conviction is liable to be sustained. However, sentence is on the higher side. I feel that sentence of one year RI with fine of Rs.5,000/- in default of which accused shall undergo SI for 15 days will serve the purpose. 37. Accordingly, appeal is allowed in part confirming the conviction and modifying the sentence under section 13 (2) read with section section 13 (1) (c) of the PC Act. Sentence is modified to RI for one year and fine of Rs.5,000/-. In default of which, accused shall undergo SI for 15 days. For offence punishable under section 406 IPC, I am inclined to modify the sentence to RI for six months. Crl.Appeal is allowed to the above extent. Sd/- SUNIL THOMAS JUDGE dpk