State of Kerala v. M.K. Suresh Kumar; T. Ravi Narayanan; K.O. Pathrose; S.M. Stanly (Criminal Appeal Nos. 1917/2007, 1934/2007, 1936/2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** ## **CRL.A.No. 1917 of 2007** **AGAINST THE JUDGMENT IN CC 11/2001 of ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** ## **APPELLANT/2ND ACCUSED:** **M.K.SURESH KUMAR FORMER FOREST RANGE OFFICER, NERIAMANGALAM,PRESENTLY WORKING AS FOREST RANGE, OFFICER,CHALAKUDDY.** ## **BY ADV. SRI.P.RAHUL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, IDUKKI (M.S. 7/1997 OF VACB, IDUKKI)** ## **SRI SANTHOSH PETER-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.1.2019, ALONG WITH CRL.A.1934/2007 AND CRL.A.1936/2007, THE COURT ON 14.3.2019 DELIVERED THE FOLLOWING:** **Crl.A Nos.1917/2007 and connected cases** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** **CRL.A.No. 1934 of 2007** **AGAINST THE JUDGMENT IN CC 11/2001 of ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR DATED 08-10-2007** ## **APPELLANT/ACCUSED:** **T.RAVI NARAYANAN S/O NARAYANAN, TRIBAL SETTLEMENT, ELAMBLASSERY.** **BY ADVS. SRI.R.RANJITH SRI.M.T.SURESHKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.1.2019, ALONG WITH CRL.A.1936/2007 AND CRL.A.1917/2007, THE COURT ON 14.3.2019 DELIVERED THE FOLLOWING:** **Crl.A Nos.1917/2007 and connected cases** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** **CRL.A.No. 1936 of 2007** **AGAINST THE JUDGMENT IN CC 11/2001 of ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR DATED 08-10-2007** ## **APPELLANT/ACCUSED NOS.1 AND 5:** **1 K.O.PATHROSE FORMER TRIBAL EXTENSION OFFICER, IDAMALAYAR, NOW RESIDING AT KOTTACKAL HOUSE, N.M.C.NAGAR, ONNAM MILE, KOTHAMANGALAM. 2 S.M.STANLY FORMER PROJECT OFFICER,, ITDP, IDUKKI.** **BY ADVS. SRI.G.D.PANICKER SRI.A.MOHAMMED SMT.JEENA JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA DEPUTY SUPERINTENDENT OF POLICE, VACB, IDUKKY, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.1.2019, ALONG WITH CRL.A.Nos.1934/2007 and CRL.A.1936/2007, THE COURT ON 14.3.2019 DELIVERED THE FOLLOWING:** **Crl.A Nos.1917/2007 and connected cases** **4** ## **JUDGMENT** These three appeals have arisen out of the judgment of conviction in C.C 11/2001 of the Special Court (Vigilance), Thrissur. Five accused including three public servants faced trial before the learned trial Judge in the said case. The 2[nd] accused is the appellant in Crl.A No.1917/2007, the accused Nos.1 and 5 are the appellants in Crl.A No.1936/2007 and the 3[rd] accused is the appellant in Crl.A No. 1934/2007. The 4[th] accused died after the judgment of conviction. 2. The prosecution relates to the misappropriation of the timber allotted by the Forest Department for the construction of houses for the houseless tribals of the Elamblassery Tribal Settlement within the Edamalayar Forest Range under a Government scheme for providing financial aid and assistance to the members of **Crl.A Nos.1917/2007 and connected cases** **5** scheduled tribe during 1994. The 1[st] accused was the Tribal Extension officer of the Edamalayar area, the 2[nd] accused was the then Forest Range Officer of the Nelliampathy Range and the 5[th] accused was the Project Officer of the Integrated Tribal Development Project, Idukki. Under the Government scheme providing financial and other aid to the members of scheduled tribe, some quantity of timber was allotted to different beneficiaries from the Forest Department and necessary orders were issued by the Divisional Forest Officer, Munnar. The 3[rd] accused accused is one of the beneficiaries selected for the said aid as a member of scheduled tribe. The 4[th] accused was an aide of the 3[rd] accused. 3. The prosecution case is that instead of providing financial aid in cash to the members of the scheduled tribe selected as beneficiaries, some timber or wooden logs were **Crl.A Nos.1917/2007 and connected cases** ## **6** allotted to the beneficiaries as per the order of the Divisional Forest Officer, the accused Nos.1,2, and 5 handed over the quantity of wooden logs to the accused Nos.3 and 4 unauthorisedly and they were allowed to remove the logs from the forest area on behalf of the beneficiaries, the accused Nos.3 and 4 accordingly took the entire logs to a sawmill at Perumbavoor where it was sawn as required by them, but without supplying the timber to the beneficiaries, the accused Nos.3 and 4 converted the timber to their own use and thus appropriated the value of the timber as part of the criminal design hatched with the accused Nos.1,2 and 5. 4. The crime happened to be registered on the basis of a complaint received at the forest office. After necessary preliminary enquiry by the forest officials regarding the allegations of misappropriation or conversion of timber to **Crl.A Nos.1917/2007 and connected cases** **7** their own use by the accused Nos.3 and 4 with the assistance and aid of the other accused, the complaint was forwarded for necessary action to the Vigilance and Anti-Corruption Bureau, (VAB) Idukki. On the basis of the complaint and the report of enquiry, crime was registered at the office of the Deputy Superintendent of Police, VACB, Idukki. After investigation, the VACB Idukki Unit submitted final report in court. 5. All the five accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against them under Sections 409, 468 and 477A read with Section 120B I.P.C and also under Sections 13(1)(c) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the P.C Act). 6. For the offences alleged under Sections 409, 468 and 477A I.P.C against the accused Nos.3 and 4, the public servants were roped in **Crl.A Nos.1917/2007 and connected cases** ## **8** under Section 120B I.P.C and the offences alleged under the P.C Act were alleged only against the accused Nos.1,2 and 5. The prosecution examined 29 witnesses and proved Exts.P1 to P51 documents in the trial court. All the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. The accused Nos.3 and 4 projected a defence that they had not removed any quantity of wooden logs from the forest and they had not misappropriated anything. The public servants projected a defence that necessary pass was issued in the name of the 3[rd] accused for removing the logs from the forest on behalf of the beneficiaries, as authorised by the different beneficiaries, that they had not in any manner been a party to the offence alleged against the accused Nos.3 and 4, and that they had not misappropriated anything from the timber allotted to the members of scheduled tribe. The **Crl.A Nos.1917/2007 and connected cases** ## **9** accused did not adduce any oral evidence in defence, but Exts D1 and D2 were marked on their side. 7. On an appreciation of the evidence, the trial court found all the accused not guilty of the offences under Sections 468 and 477A read with Section 120B I.P.C. The accused Nos.1,2 and 5 (public servants) were found guilty under Sections 13(1) (c) and 13(1)(d) read with 13 (2) of the P.C Act, and also under Section 409 I.P.C. The other accused were also found guilty under Section 409 I.P.C with the aid of Section 120B I.P.C. On conviction, the accused Nos.1,2 and 5 were sentenced to undergo rigorous imprisonment for four years each and to pay a fine of 20,000/- each under Section 13(1)(c)₹ read with Section 13(2) of the P.C Act, to undergo rigorous imprisonment for four years each and to pay a fine of 20,000/- each under₹ Section 13(1)(d) read with 13(2) of the P.C Act, **Crl.A Nos.1917/2007 and connected cases** **10** and to undergo another term of rigorous imprisonment for four years each and to pay a fine of 20,000/- each under Section 409 I.P.C.₹ The accused Nos.3 and 4 (non-public servants) were sentenced to undergo rigorous imprisonment for four years each and to pay a fine of ₹ 20,000/- each under Section 409 I.P.C read with Section 120B I.P.C. Aggrieved by the judgment of conviction dated 8.10.2007, the different accused have come up in appeal. It was submitted that the 4[th] accused died after the judgment of conviction. 8. On hearing both sides, and on a perusal of the materials, I find that definite evidence is there as against the 3[rd] accused, who is a non-public servant, to prove the prosecution allegation that as authorised by the different beneficiaries, he and the 4[th] accused had removed the wooden logs from the forest under a pass issued from the forest department. When **Crl.A Nos.1917/2007 and connected cases** ## **11** the accused No.4 is no more, it would be inappropriate to discuss his complicity along with the 3[rd] accused, and so I will confine my discussion on the factual aspects concerning the 3[rd] accused alone. The prosecution has not adduced any definite and satisfactory evidence to prove the complicity and involvement of the accused Nos.1,2 and 5. It is quite clear from the evidence that the 3[rd] accused along with the 4[th] accused had removed the logs from the forest, he did it under a pass issued by the 2[nd] accused, and the said pass happened to be issued on the basis of the authorisation given to the 3[rd] accused by the different beneficiaries. To rope in the accused Nos.1,2 and 5 under Section 120B I.P.C for the offence committed by the others, there must be definite material proving such conspiracy. To punish the accused Nos.1,2 and 5 under the P.C Act also, there must be some definite material or evidence **Crl.A Nos.1917/2007 and connected cases** ## **12** to prove that pass was issued to the 3[rd] accused or that the accused Nos.3 and 4 were allowed to remove the logs from the forest by the public servants as part of a criminal design and they did so by abusing their position as public servants with the object of making or causing any sort of gain or pecuniary advantage to themselves or the accused Nos.3 and 4. If the public servants had acted without any dishonest object or intention or without any element of corruption, or if they simply happened to discharge the functions as public servants in good faith, or if the required pass happened to be issued to the 3[rd] accused on the basis of the authorisation given by the different beneficiaries in favour of the 3[rd] accused, the public servants cannot be punished under the P.C Act. If at all there was any dereliction of duty or malfeasance on their part, or if they had in any manner violated the **Crl.A Nos.1917/2007 and connected cases** ## **13** rules in the matter of carrying out the Government scheme for the benefit of the members of the scheduled tribe, appropriate disciplinary action can be initiated against the public servants, but for a prosecution under the P.C Act, there must be definite evidence to prove the required elements of the misconduct alleged. 9. First let me see whether there is a proper and legal prosecution sanction to prosecute the accused Nos.1,2 and 5. Ext.P1 is said to be the prosecution sanction granted under Section 19 of the P.C Act by the Additional Chief Secretary to the Government. An Under Secretary was examined as PW1 to prove the prosecution sanction. This Court has settled the legal position that to prove a prosecution sanction under Section 19 of the P.C Act, the officer who granted the sanction will have to be examined and he will have to convince the court that the sanction was granted by him **Crl.A Nos.1917/2007 and connected cases** ## **14** on an independent application of his mind to the facts of the case and also on examination of the prosecution materials. That responsibility cannot be taken over by somebodyelse. From **Antony Cardoza v. State of Kerala [2011 (1) KHC 377]** onwards, this Court has consistently held that to prove a prosecution sanction under Section 19 of the P.C Act, somebodyelse who just handled the file cannot be examined, and such a person cannot legally prove the prosecution sanction. In **Prakash Pai.H (Dr.)v. State of Kerala [2015 (4) KHC 557]** also, the position was explained by the court relying on **Antony Cardoza's case.** The evidence of PW1 shows that he had not in any manner dealt with the file concerning prosecution sanction and he just marked the sanction as an Under Secretary to the Vigilance Department. He does not know what all materials were examined by the Additional Chief **Crl.A Nos.1917/2007 and connected cases** ## **15** Secretary, he cannot definitely say whether the Additional Chief Secretary had applied his mind independently to the facts of the case or how exactly the Additional Chief Secretary decided to grant sanction to prosecute the accused Nos.1,2 and 5. The prosecution has no explanation for the non-examination of the Secretary who granted the sanction under Section 19 of the P.C Act. The sanction required under Section 19 of the Act is a pre-requisite for a prosecution under the P.C Act and the sanction must be well proved before the court according to law. When the prosecution sanction is not proved according to law, the public servants will get the benefit of it by way of acquittal. PW1 does not have any idea as to how, or in what manner or in what circumstance the Ext.P1 sanction was granted by the Additional Chief Secretary. Just because he had come across the files as the Under Secretary of the Vigilance ## **Crl.A Nos.1917/2007 and connected cases** ## **16** Department, he cannot be said to be competent to prove the sanction. I find that the prosecution sanction in this case to prosecute the accused Nos.1,2 and 5 stands not properly proved according to law, and on this ground itself, the accused Nos.1,2 and 5 are entitled for acquittal. 10. Actual criminal misappropriation and breach of trust are alleged against the accused Nos.3 and 4, who allegedly took delivery of the wooden logs from the forest office. The allegation as against the public servants is that they were also parties to the criminal conspiracy hatched by them all to commit misappropriation. Before deciding the involvement and complicity of the accused Nos.1, 2 and 5, let me see whether the allegation of criminal misappropriation and breach of trust against the non-public servants is proved by the prosecution. The issue is concerning conversion **Crl.A Nos.1917/2007 and connected cases** **17** of some wooden logs meant for supply to the members of scheduled tribe, by the accused Nos.3 and 4, for their own use dishonestly, without supplying anything to the different beneficiaries. PW2 to PW4, PW6, PW7, PW10 and the 3[rd] accused are the beneficiaries under the Government Scheme and different quantities of timber were allotted to them from the Forest department. Ext.P12 file contains all the details and the proceedings of the Divisional Forest Officer sanctioning the supply of logs to different members of scheduled tribe, and also the timely directions given to the Forest Range Officer and the Tribal Development Officer. The letter No.M4-1527/1996 dated 21.3.1996 issued by the Divisional Forest Officer to the Forest Range Officer is contained in the Ext.P12 files and the direction of the Divisional Forest Officer is to release the timber to the 1[st] accused who will receive **Crl.A Nos.1917/2007 and connected cases** ## **18** it on behalf of the different beneficiaries as the Tribal Extension Officer. It was thereafter the 3[rd] accused approached the Forest Range Officer with the authorisation given by the different beneficiaries authorising him to receive the logs on their behalf and also requesting the Forest Range officer to issue necessary pass to remove the logs. All the beneficiaries have consistently stated that the 3[rd] accused was elected as the Convenor by the beneficiaries to do the necessary things including taking delivery of the logs from the Forest Department. Though some of the beneficiaries turned hostile during trial, most of them supported the prosecution and stated before the court that they had authorised the 3[rd] accused to receive the logs on their behalf from the Forest Range Office. The order No.E1123/1994 dated 5.11.1994 in the Ext.P12 file is referred to by the trial court as the order by **Crl.A Nos.1917/2007 and connected cases** ## **19** which PW2 to PW4, PW6 and PW7 were selected as beneficiaries and the order No.E-1123/1994 dated 7.12.1994 in the Ext.P12 file is referred to as the order by which PW10 and the third accused were selected as the beneficiaries by the Divisional Forest Officer. As regards these aspects, there is no dispute. The beneficiaries were examined to prove the prosecution case that they had authorised the accused Nos.3 and 4 and that nothing was in fact provided or delivered to them by the accused Nos.3 and 4. Now let me examine the evidence of the beneficiaries one by one. 11. PW2 is one of the beneficiaries. Though she did not support the prosecution, or did not implicate the accused Nos.3 and 4, she practically admitted during cross-examination that she had authorised the 3[rd] accused to receive the logs on her behalf. The authorisation in the files containing her **Crl.A Nos.1917/2007 and connected cases** ## **20** signature was denied by her, but when crossexamined on this aspect, she stated like this: തടടി കകകൊണ്ടു വന്നു തരുവകൊൻ ഞകൊൻ രവടികയെ അധടികകൊരകപ്പെടുതടി. [I had authorised Ravi (A3) to take delivery of the logs on my behalf]. She stated that she had not made any complaint against any anybody in the matter. 12. When cross-examined on behalf of the accused Nos.3 and 4, she stated that she had made payment of an amount of ₹5000/to somebody, but she does not remember to whom she had paid the amount. When asked further about this, whether the amount was given to the 3[rd] accused, she stated that she does not know or she does not remember. Thus the evidence of PW2 shows that she had in fact authortised the 3[rd] accused to receive the wooden logs on her behalf from the Forest Department. PW3 is another beneficiary. Her evidence is that she **Crl.A Nos.1917/2007 and connected cases** ## **21** had authorised the accused Nos.3 and 4 to receive the logs meant for her from the Forest department and she also identified the signature in the authorisation. PW4 is another beneficiary. He partly supported the prosecution and partly supported the accused. However, on the material aspects, he stated that he had authorised the 4[th] accused to receive the logs on his behalf from the forest office and he also stated that the 3[rd] accused was elected by the beneficiaries as the convenor for doing the necessary things in the matter. Though he denied the authorisation containing his signature, he practically admitted the fact of authorisation PW5 is not a beneficiary. He has nothing to say about the alleged acts of the accused Nos.3 and 4. PW6 is another beneficiary. She stated that she had not authorised the 3[rd] accused to receive the logs on her behalf from the Forest Range Office and **Crl.A Nos.1917/2007 and connected cases** **22** she even stated that the 3[rd] accused was not in fact elected as the Convenor by the beneficiaries for doing the necessary things. But in the next breath, she stated that when the 3[rd] accused offered that he would receive the logs from the forest department under a pass, he was authorised by her. Thus, though turned hostile, this witness also practically supported the prosecution. PW7 is another beneficiary. This witness stated that he had not in fact received any benefit from the Forest Department under the scheme of the Government. He stated that the 1[st] accused had told him that he would get some logs from the forest office , but nothing was given to him. When cross-examined on behalf of the accused Nos.1 and 5, he stated that he had authorised the 3[rd] accused as the convenor to receive the wooden logs on his behalf from the Forest Range Office. He also stated that he and the others had authorised the ## **Crl.A Nos.1917/2007 and connected cases** **23** 3[rd] accused to take the logs to the sawmill. His evidence is that as instructed by the accused Nos.3 and 4, the wooden logs were removed from the Forest Range office to the sawmill at Perumbavoor and he was also a passenger in the lorry wherein, the logs were transported to the sawmill. When he denied the prosecution version that the accused Nos.3 and 4 had followed the lorry in a jeep, he was declared hostile by the learned Public Prosecutor. The evidence of PW8 also shows that the different beneficiaries had authorised the accused Nos.3 and 4 to receive the logs on their behalf from the Forest Range Office and as instructed by them the wooden logs were removed in a lorry to a sawmill at Perumbavoor. 13. PW9 was the Divisional Forest Officer of the Flying Squad unit of the Forest Department at Kothamangalam and he proved the Ext.P5(a) complaint on the basis of which an enquiry was ## **Crl.A Nos.1917/2007 and connected cases** **24** conducted by the Flying Squad Forest Range Officer. Ext.P5(b) is the report of the Range Officer. This report contains the things detected on enquiry by the Forest Range Officer regarding the allotment of timber and also the receipt of timber by the accused Nos. 3 and 4 from the Forest Range Office on behalf of the different beneficiaries. Though the logs were removed from the Forest Range Office by the accused Nos.3 and 4, nothing was in fact delivered to the beneficiaries. I find no reason to disbelieve PW9. 14. PW10 is yet another beneficiary. This witness was declared hostile by the prosecution. When asked about the Government scheme and the supply of logs, she stated that only her son knows the facts and she does not know anything about the schme and supply of timber. 15. As discussed above, the evidence given **Crl.A Nos.1917/2007 and connected cases** ## **25** by the different beneficiaries and also the evidence given by PW8 and PW9 will convincingly prove that the different beneficiaries under the scheme had authorised the accused Nos.3 and 4 to take delivery of the wooden logs from the Forest Range Office on their behalf. Ext.P7 is the pass issued in the name of the 3[rd] accused from the Forest Range office and this was proved by the forest officials. This pass was issued by the 2[nd] accused on the request of the 1[st] accused. The 1[st] accused instructed the Forest Range Officer to issue pass in the name of the 3[rd] accused only because the 3[rd] accused was so authorised by the beneficiaries and the 1[st] accused believed bona fide that as the person authorised by the beneficiaries in writing, the 3[rd] accused would take delivery of the logs, get it sawn at the mill and supply the timber to the respective beneficiaries. 16. PW18 is a very important witness. **Crl.A Nos.1917/2007 and connected cases** ## **26** He was the Manager of the Fousia Sawmill at, Perumbavoor at the relevant time. His evidence is that the accused Nos.3 and 4 had brought some logs at the sawmill for being sawn, the logs were in fact sawn at the mill on their demand and as sawing charges 3675.65 was received₹ from the 3[rd] accused. This witness proved the Ext.P21 sawing bill book kept at the sawmill and also the Ext.P21(a) copy of the bill showing receipt of 3675.65 from the 3₹ rd accused. The defence could not impeach the credit of this material witness. His evidence convincingly shows that the accused Nos.3 and 4 had brought some wooden logs at the Fousia Sawmill, the logs were sawn there as demanded by them, they brought the logs there under a pass issued from the forest department, and that the required sawing fee was also received from the 3[rd] accused. The evidence given by this witness shows that the wooden logs brought at his **Crl.A Nos.1917/2007 and connected cases** ## **27** sawmill by the accused Nos.3 and 4 were in fact the wooden logs covered by the Ext.P7 pass issued from the Forest Range Office in the name of the 3[rd] accused. I find no reason to disbelieve PW8 or to reject his evidence proving the role of the accused Nos.3 and 4. PW28 was the Section Forestor of the Valara forest Station at the relevant time. His evidence is that the wooden logs meant for the tribal beneficiaries were in fact removed from the forest office by the accused Nos.3 and 4, and this fact has been noted in the Ext.P38 general diary. He even stated that the wooden logs were transported in a lorry on 27.3.1996 and he has recorded this fact also in the general diary. He also gave evidence about the Ext.P7 pass issued in the name of the 3[rd] accused. He stated that it was as per this pass, the wooden logs were delivered to the 3[rd] accused. PW28 was cross-examined at length by **Crl.A Nos.1917/2007 and connected cases** ## **28** the defence, but nothing could be brought out to discredit his evidence. He affirmed in evidence that the 3[rd] accused had taken delivery of and transported the wooden logs meant for the tribal beneficiaries in a lorry, he had witnessed this fact and he had also recorded the fact of transportation under the Ext.P7 pass in the Ext.P28 general diary. 17. As discussed above, the evidence given by PW18 and PW28 will convincingly prove beyond any reasonable doubt that the wooden logs meant for the tribal beneficiaries were in fact taken delivery of from the Forest Range office by the 3[rd] accused under the Ext.P7 pass and the logs were removed to the Fousia Saw Mill at Perumbavoor by the accused Nos.3 and 4 in a lorry. It stands further proved that the logs were sawn there and the timber were delivered to the accused Nos.3 and 4 from the sawmill. **Crl.A Nos.1917/2007 and connected cases** ## **29** 18. Now the question is whether the accused Nos.3 and 4 had in fact delivered the timber to any of the beneficiaries. None of the beneficiaries has stated that he or she was given any quantity of timber by the 3[rd] accused or the 4[th] accused. Of course, the 4[th] accused is no more, and so his complicity need not be discussed. All the beneficiaries have consistently stated that they had not in fact received any quantity of timber under the Government scheme and most of the beneficiaries affirmed in evidence that they had authorised the accused No.3 to take delivery of the logs on their behalf from the Forest Range Office. Entrustment of the property or delivery of the property to the 3[rd] accused from the Forest Range Office under the Ext.P7 pass, as authorised by the beneficiaries and as instructed by the 1[st] accused, stands well proved in evidence. Now the question is whether **Crl.A Nos.1917/2007 and connected cases** ## **30** the timber or the logs were supplied to the beneficiaries in terms of the Government Scheme, or whether the logs or timber were appropriated for his own use by the 3[rd] accused. On this aspect, all the beneficiaries are consistent that nothing, or no piece of timber was delivered to him or her by the 3[rd] accused, who had received the entire logs from the Forest Range Office under the Ext.P7 pass. It is not known whether the timber pieces were used by the 3[rd] accused or whether he sold it out. Once entrustment is proved and delivery is not proved or when the beneficiaries have categorically stated that they had not received anything from the 3[rd] accused, it is for the 3[rd] accused to prove that he had not misappropriated anything, or whether he had delivered the timber to any of the beneficiaries. Thus, criminal breach of trust and misappropriation stands well proved by evidence. I find that the **Crl.A Nos.1917/2007 and connected cases** ## **31** prosecution case as against the accused No.3 stands very well proved. The conviction against him is under Section 409 I.P.C with the aid of Section 120B I.P.C. Even if there is nothing to prove criminal conspiracy, the 3[rd] accused can be convicted under Section 409 I.P.C without the aid of Section 120B I.P.C. A clear case of breach of trust and misappropriation stands well proved against him. 19. Now the question is whether the accused Nos.1,2 and 5 had any sort of complicity or involvement in the alleged misappropriation or breach of trust committed by the 3[rd] accused. Just because, the Ext.P7 pass was issued in the name of the 3[rd] accused by the 2[nd] accused, or just because the 1[st] accused had instructed the Forest Range office to issue a pass in the name of the 3[rd] accused, the court cannot find a case of criminal conspiracy or misconduct. Evidence convincingly proves that the 1[st] accused **Crl.A Nos.1917/2007 and connected cases** ## **32** happened to instruct the 2[nd] accused to issue pass in the name of the 3[rd] accused only because the beneficiaries had authorised the 3[rd] accused and the 4[th] accused to receive the logs, and the 2[nd] accused bona fide issued the pass in the name of the 3[rd] accused on the basis of the authorisation made by the different beneficiaries. Of course, he had no instruction from the superior officers to act upon such authorisation. Probably he bona fide acted upon the authorisation and happened to issue a pass. If at all there was any breach of duty or dereliction of duty on the part of the accused Nos.1 and 2, what is possible is only disciplinary action against them for having violated the provisions of the Scheme or the Guidelines. There is absolutely nothing to show that the accused Nos.1,2 and 5 had derived any benefit or any pecuniary or other advantage out of the alleged transaction. There is **Crl.A Nos.1917/2007 and connected cases** ## **33** nothing to show that any of them had received any bribe from the accused Nos.3 and 4 or from any of the beneficiaries. Nobody has got a case that anything was paid as bribe to the public servants. It is not known what exactly is the role of the 5[th] accused. All the official functions were performed by the accused Nos.1 and 2. There is nothing to show that the 5[th] accused had been in any manner instrumental in issuing pass in the name of the 3[rd] accused. The only evidence against the accused Nos.1 and 2 is that a pass was wrongly issued in the name of the 3[rd] accused by the 2[nd] accused as instructed by the 1[st] accused. That alone cannot a material to find criminal misconduct on the part of the public servants. Thus, I find that as against the accused Nos.1,2 and 5, no offence stands proved. There is nothing to find them guilty under the provisions of the P.C Act or under Section 409 I.P.C. There is **Crl.A Nos.1917/2007 and connected cases** ## **34** absolutely nothing to prove that the Ext.P7 pass was issued to the 3[rd] accused by the 2[nd] accused in prosecution of any criminal design or criminal conspiracy. Even without the aid of Section 120B I.P.C, the 3[rd] accused can be independently convicted under Section 409 I.P.C for the breach of trust and criminal misappropriation committed by him. As regards the offences under Sections 468 and 477A IPC, all the accused including the 3[rd] accused stand acquitted by the trial court. The conviction against the accused Nos.1,2 and 5 is under Sections 13(1)(c) and 13 (1) (d) read with 13 (2) of the P.C Act and also under Section 409 I.P.C read with Section 120B I.P.C. But in appeal, the accused Nos.1,2 and 5 are found not guilty of any of the offences and they are being acquitted of all the charges against them. The conviction against the 3[rd] accused is specifically under Section 409 I.P.C read with **Crl.A Nos.1917/2007 and connected cases** ## **35** Section 120B I.P.C. As regards the charge under Section 120B I.P.C, this Court has found that such an offence stands not proved and there is absolutely no material to rope in anybody under Section 120B I.P.C. In the result, Crl.A Nos.1917/2007 and 1936/2007 are allowed and Crl.A No.1934/2007 is allowed in part. Accordingly, the accused Nos.1,2 and 5 (appellants in Crl.A No.1917/2007 and 1936/2007) are found not guilty of the offences under Sections 13(1) (c) and 13(1)(d) read with 13 (2)of the P.C Act and under Section 409 read with Section 120B I.P.C and they are acquitted of those offences in appeal, under Section 386(b) (i) Cr.P.C. The conviction and sentence against them under those sections in C.C 11/2001 of the court below will stand set aside and they will stand released from prosecution. The conviction against the 3[rd] accused (appellant in Crl.A 1934/2007) under Section 409 I.P.C is confirmed, but the conviction against him under Section 120B I.P.C is set aside. **Crl.A Nos.1917/2007 and connected cases** ## **36** Even without the aid of Section 120B I.P.C, the 3[rd] accused is liable for conviction under Section 409 I.P.C. The sentence imposed by the trial court against the 3[rd] accused is rigorous imprisonment for four years, and a fine of 20,000/- under Section₹ 409 I.P.C. In appeal, the said substantive sentence is modified and reduced to rigorous imprisonment for 1½ years. The fine sentence with the default sentence thereon is maintained. The 3[rd] accused (appellant in Crl.A NO.1934/2007) will surrender before the trial court, within four weeks from this date to serve out the modified sentence, and to make payment of the fine amount, voluntarily, on failure of which steps shall be taken by the trial court to enforce the modified sentence, and realise the amount of fine or enforce the default sentence. ma **Sd/P.UBAID JUDGE** /True copy/ P.S to Judge