State of Kerala v. T.C. Suresh @ George, C. Selvaraj, P. Suresh @ Suresh Babu

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 ## CRL.A NO. 1394 OF 2009 AGAINST THE ORDER/JUDGMENTCC 43/2001 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD. ## APPELLANT/COMPLAINANT: STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY SPECIAL GOVERNMENT PLEADER SRI RAJESH A ## RESPONDENT/S: - 1 T.C.SURESH @GEORGE, S/O CHACKO,THODUVAKKUZHIYIL HOUSE, ONAKKUR, MUVATTUPUZHA, (DEPUTY DIRECTOR, DISTRICT PLANNING OFFICE) - 2 C.SELVARAJ,S/O.CHINNAKUTTY, ATTAPPADI CO-OPERATIVE FARMING SOCIETY,AGALI (AGRICULTURAL, ASSISTANT) - 3 P.SURESH @SURESH BABU, S/O.PARAMESWARAN NAIR ,PARAPPALLIL HOUSE, CHITTUR P.O. AGALI. - BY ADV SRIK.C.SURESH ## OTHER PRESENT: SRI.A.RAJESH -SPL.PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1394 OF 2009 ..2.. ## **JUDGMENT** The State is in appeal challenging the judgment dated 27.10.2006 passed by the Enquiry Commissioner and Special Judge, Kozhikode in C.C.No.43 of 2001 whereby all the three accused were acquitted of the offences under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,1988 and Sections 420, 468, 471 and 477A read with Section 120B of the Indian Penal Code. Accused No.1, an officer of the Kerala State Planning and Economic Affairs Department, was on deputation as Secretary of the Attappadi Co-operative Farming Society, Agali, (hereinafter referred to as ‘the Society’) during the period from 08.06.1988 to 17.11.1996. Accused No.2 was the Agricultural Assistant attached to the Society. He was officiating as stock custodian of the Society during the period 1995-1996. Accused No.3 is a contractor by profession. CRL.A NO. 1394 OF 2009 ..3.. 2. According to the prosecution, all the accused entered into a criminal conspiracy to misappropriate the assets of the Society. Accused Nos. 1 and 2 abused their official position as public servants and resorted to purchase electrical materials for the installation of 15HP motor and falsified and forged the official records with the connivance of accused No.3 and in April-May, 1996, used those bills as genuine and fraudulently and dishonestly misappropriated the assets of the Society and obtained pecuniary gain to the tune of Rs.25,857.50/causing loss to the Society. 3. The Dy.S.P., Vigilance and Anti-Corruption Bureau, Palakkad registered FIR against the accused. After completing the investigation, final report was submitted against the accused for the aforesaid offences before the trial Court. 4. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of CRL.A NO. 1394 OF 2009 ..4.. the Prevention of Corruption Act, 1988 and Sections 420, 468, 471 and 477A read with Section 120B of the Indian Penal Code. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the trial Court for the aforesaid offences. The prosecution examined PWs 1 to 19 and proved Exts.P1 to P26. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. On the side of the defence, Exts.D1 to D4 were marked. 6. The learned trial Court, after hearing the arguments addressed on both sides, found the accused not guilty of the offences alleged and acquitted them under Section 248(1) of Cr.P.C. 7. Heard Sri.A.Rajesh, the learned Special Government Pleader (Vigilance) appearing for the appellant. 8. The learned Special Government Pleader CRL.A NO. 1394 OF 2009 ..5.. contended that the judgment of the trial Court is opposed to law in the facts and circumstances of the case. The learned Special Government Pleader, relying on Exts.P1(d) and P1(e), contended that there was ample evidence to show that accused No.2 was the custodian of the stocks of the Society and that he had admitted to the effect that the materials involved in this case were not delivered to the Society. The learned Special Government Pleader further contended that the prosecution could establish the circumstances which could be sufficient to infer the conspiracy alleged by the prosecution. It is also contended that the complicity of all the accused in the hatching of conspiracy and the subsequent acts resulting in the misappropriation of the valuable assets of the Society has been established by the prosecution with the aid of concrete evidence. The learned Special Government Pleader further submitted that the trial Court had not meticulously considered the entire prosecution evidence. The learned Special Government CRL.A NO. 1394 OF 2009 ..6.. Pleader contended that the impugned judgment requires interference and the same is liable to be set aside. 9. The gist of the prosecution allegation is that accused Nos.1 and 2, being public servants, entered into a criminal conspiracy and, in furtherance of that conspiracy, abusing their official position, falsified accounts, documents and registers so as to make it appear that they purchased electrical materials worth Rs. Rs.25,857.50/- for the installation of a 15HP motor, without purchasing any such electrical materials with the aid of accused No.3, a contractor by profession, and thereby obtained an undue pecuniary advantage and wrongful gain causing wrongful loss to the Society. 10. The case of accused No.1 is that he has not committed any offence as alleged. He added that during his tenure as the Secretary of the Society, on account of his excellent work, the financial position of the Society progressed and he was awarded Good Service Entry from the authorities concerned. The case of accused No.2 is CRL.A NO. 1394 OF 2009 ..7.. that there was an attempt to tarnish his image. Accused No.3 set up the defence that, as per due receipts, he had received the electrical items for the purpose of wiring at the pump shed at Chindakki from the Society. But he could not complete the wiring, and the materials were kept at his store in Agali. According to accused No.3, subsequently, those electrical materials were destroyed by fire at his store. 11. In order to bring home the offences alleged against the accused, the prosecution seeks to establish that - (a) accused Nos.1 to 3 entered into a criminal conspiracy for the purpose of misappropriating the funds of the society; - (b) the electrical materials referred to in Exts.P1(a) to (c) were not delivered to the Society by accused No.3; and - (c) the accused created bogus bills, registers and related accounts dishonestly and fraudulently CRL.A NO. 1394 OF 2009 **==> picture [20 x 9] intentionally omitted <==** with an intent to obtain wrongful gain and cause wrongful loss to the Society. 12. I shall come to the conspiracy question in the latter part of this judgment. 13. The crucial question to be considered is whether the prosecution has succeeded in proving that accused No.3 had not actually delivered electrical materials referred to in Exts.P1(a) to (c) to the Society. Ext.P5, the stock register for the relevant period, would show that the electrical materials referred to in Exts.P1(a) to (c) were delivered to the Society and were made part of the stock of materials maintained by the Society. The prosecution alleges that no electrical materials referred to in Exts.P1(a) to (c) were actually delivered to the Society and entries in Ext.P5 stock register are forged. The prosecution relied on Ext.P1(d) and Ext.P1(e) to establish that accused No.3 had not actually delivered the electrical materials. Ext.P1(d) is a letter dated 31.12.1996 issued by accused No.2 CRL.A NO. 1394 OF 2009 **==> picture [20 x 9] intentionally omitted <==** addressed to the Secretary of the Society wherein he had stated that he entered the entry in the miscellaneous stock register under the belief that the items must have reached the store in view of the quotation given to accused No.3 and the passing of bills by accused No.1 in favour of accused No.3. In Ext.P1(e), the Unit Officer concerned, gave a reply to the then Secretary, PW2, that the electrical items were not delivered at Chindakki farm till 27.12.1996. Accused No.2 contended that he happened to send Ext.P1(d), as insisted by PW2, on 30.12.1996. He specifically stated in his examination under Section 313 Cr.P.C. that there was compulsion from PW2 to issue Ext.P1(d) letter. The defence relied on Ext.D1 to substantiate that electrical materials were delivered to the Society and the same were entrusted to accused No.3 for completion of the work as agreed by him. By way of Ext.D1, a letter dated 16.10.1996, accused No.1 had directed accused No.3 to complete the wiring works at the earliest. Ext.P1(d) is dated 31.12.1996. The CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** genuineness of Ext.D1 is not under challenge. Ext.D1 is anterior in date to Ext.P1(d). Therefore, the contention of the defence that Ext.P1(d) was made by way of compulsion has force. 14. The prosecution mainly relied on the oral evidence of PWs 1 to 7 and 9 to 11. All those witnesses stated about the purchase of spare parts by the Society from accused No.3 and that those were not actually received by the Society. The subject matters of misappropriation in the present case are electrical materials. Therefore, the oral evidence of PWs 1 to 7 and 9 to 11 are not sufficient to enter into a conclusion that the electrical materials were actually not delivered by accused No.3 to the Society. 15. The prosecution, relying on Exts.P1(d) and P1(e), sought to establish that accused No.2 was the custodian of the stocks of the Society. But, Rule 29(VII) of Ext.P15 bye-law of the Society would show that the Secretary shall have custody of all the properties of the CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** Society, including cash. So, there could not be a conclusion that accused No.2 had custody of the properties of the Society, including the subject matters, in this case. On that count itself, no liability can be fastened on accused No.2. The defence of accused No.3 is also relevant in this regard. According to accused No.3, he had actually delivered the electrical materials to the Society and later, he had taken the same for the completion of the work and kept in the store maintained by him at Agali. Accused No.3 further set up the defence that the electrical materials were destroyed in a fire occurred in the store maintained by him. The fact that the fire occurred in the store maintained by accused No.3 has been admitted by PW2, the Investigating Officer, in his cross-examination. This also persuades this Court to infer that the case suggested by the defence is more probable. Apart from the oral evidence of PWs 1 to 7 and 9 to 11, there is no other evidence to show that Exts.P1(a) to (c) were bogus bills. Those witnesses have no case that CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** Exts.P1(a) to (c) were bogus bills. It has only come out in evidence that PWs 9 to 11, who had submitted quotations, denied having issued such bills. The evidence of those witnesses alone cannot be sufficient to conclude that Exts.P1(a) to (c) were bogus bills. 16. Coming to the charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means, provided the agreement is other than one to commit an offence and the prosecution must go further and prove that an act besides the agreement was done by one or more of the parties in pursuance of it. 17. It is trite that conspiracy need not necessarily be proved by direct evidence. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act. In **Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra** [AIR 1965 SC 682] **,** the Apex Court held that the offence of CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** conspiracy can be established either by direct evidence or by circumstantial evidence and the section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to that conspiracy. 18. In **Zakia Ahsan Jafri v. State of Gujarat and others** [AIR 2022 SC 3050], the Apex Court held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned. 19. Viewed in the backdrop of the principles discussed above, this Court finds that the prosecution has not succeeded in establishing the ingredients to prove the offence of conspiracy. There is no prima facie evidence to show that the accused were party to a criminal conspiracy as alleged by the prosecution. CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** 20. The accused before me are entitled to the presumption of innocence and further that, having secured their acquittal, the presumption of their innocence is reaffirmed and strengthened by the judgment of the trial Court. 21. The apex court in **Chandrappa and others vs. State of Karnataka** [(2007) 4 SCC 415], following various authorities on the subject, deduced the general principles regarding the powers of an appellate court while dealing with an appeal against an order of acquittal, as follows:- - (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. - (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. - (3) Various expressions, such as, “substantial and CRL.A NO. 1394 OF 2009 ..15.. compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. - (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should CRL.A NO. 1394 OF 2009 **==> picture [26 x 9] intentionally omitted <==** not disturb the finding of acquittal recorded by the trial court. 22. In my view, if, in the light of the aforecircumstances, the trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to the law. Hence, I am of the considered view that the view taken by the trial Court for acquitting the accused was a plausible view. For the above said reasons, the appeal lacks merits and the same is dismissed. Sd/- **K. BABU, JUDGE** kkj