V.K. Suresh Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** **CRL.A.No.2527 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CC 31/2002 DATED 26-12-2007 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR** ## **APPELLANT/ACCUSED NO.1:** **V.K.SURESH BABU FORMER SHOP MANAGER-IN-CHARGE, MAVELI STORE, VALLACHIRA.** **BY ADVS. SMT.AYSHA YOUSEFF SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH SMT.MOLLY JACOB** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR:SRI A RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.2527/2007 2 ## **JUDGMENT** ## **[ CRL.A.2527/2007)** ## **Dated this the 5[th] day of October 2020** The first accused in CC No.31/2002 of the Enquiry Commissioner and Special Judge, Thrissur,arising from VC No.5/1999 of VACB, Thrissur is the appellant herein. 2. The first accused was the shop manager in - charge of a Maveli Store at Vallachira. Second accused was the helper employed there. Prosecution alleged that, the accused being public servants, have committed offences under Section 13 (1)(c) read with section 13 (2) of the Prevention of Corruption Act and Sections 409, 465, 471 and 477A of IPC read with section 120B of IPC. 3. The prosecution allegation was that, the Kerala State Civil Supplies Corporation was running retail outlets under the name and style “Maveli Store” at various places. Each Maveli Store was run by a shop manager aided by a helper. They were jointly responsible for the stock and sale of goods in the Maveli Store. Goods sold in the store were supplied from the concerned civil supplies depot. The procedure followed 3 Crl.Appeal No.2527/2007 was that the shop manager used to forward indent for the supply of required articles. The manager of the depot will prepare the goods transfer order (GTO) and sent the articles in the vehicle of Civil Supplies Corporation. The registration number of the vehicle and the name of the driver will be mentioned in that transfer order. At the time of delivery, it will be signed by the driver. On receipt of the goods, the shop manager will prepare the Goods Transfer Receipt (GTR) and forward it to the depot. After entry of the articles in the stock register, it would be sold through the Maveli store counter against bills. During the period 1997, inspection was conducted by the junior manager (Inspection), Thrissur. She found that the accounts for the period from 2/6/1997 to 28/10/1997 evidenced by Ext.P1 inspection report and Ext.P1(a) trading particulars showed deficit stock. She had also inspected accounts and verified the stock in the store during the period from 29/10/1997 to 24/2/1998. Ext.P2 is the copy of the report, Ext.P3 is the copy of the inventory and Ext.P3 (a) is the copy of the trading particulars. She found short remittance of Rs.28,684.75 and shortage of commodities worth Rs.1,02,412.70. 4. A complaint was laid before the Superintendent of Police, Thrissur by the Regional Manager, Palakkad. Crime No.265/1998 was registered by the Cherpu police station. Thereafter, it was forwarded to the Vigilance and Anti Corruption Bureau since the accused were public 4 Crl.Appeal No.2527/2007 servants. PW23 at VACB, Thrissur registered Ext.P61, FIR. PW22 conducted the investigation. On completion of investigation, it was concluded that, there were shortage of stocks worth Rs.66,599.30 and short remittances of Rs.62,003.70. After completion of the investigation, PW23 laid the charge. 5. Pursuant to the summons issued, accused appeared and pleaded innocence. Thereafter charges were framed, read over to the accused and evidences were recorded. On the side of the prosecution, PWs.1 to 23 were examined, Exts.P1 to P61 were marked and on the defence side, Exts.D1 to D7 were marked. Court below on the basis of the evidence, found both the accused guilty, convicted and sentenced them to undergo 4 years imprisonment with fine of Rs.20,000/- in default of which the accused was directed to undergo RI for three more months. For offence proved under section 409 of IPC, the accused were convicted for 4 years and sentenced to pay a fine of Rs.20,000/-, in default of which, both the accused were directed to undergo three months rigorous imprisonment. For the offence punishable under section 477A IPC also, the accused were convicted and sentenced to undergo RI for four years each and each to pay a fine of Rs.20,000/-. Aggrieved by the conviction and sentence, the appellant has preferred this appeal. It is reported that the second appellant had died and hence the appeal is pursued by the 5 Crl.Appeal No.2527/2007 first accused alone. 6. Heard the learned senior counsel for the appellant and the learned Special Government Pleader for the Vigilance. Examined the records. 7. The first accused is the shop in charge-cum-manager. To establish the appointment of the first accused as the manager in charge and his service in Vallachira Maveli store, PW4 was examined. He was the Assistant Manager in charge of Civil Supplies Corporation, Thrissur. That office had kept incumbency register. The above register was produced by him before the Vigilance on 21/5/2001 and it was seized by Ext.P38 Mahazar. It was released by Ext.P39 kychit. PW18 was the Assistant Manager of the Civil Supplies Corporation, Thrissur. According to his version, the first accused was appointed as the shop in charge of Vallachira Maveli Store. He was the manager in charge of the shop. It was stated that, he was found to have filled up the consignment note and the stock was in joint responsibility of both staff. It was stated that, Ext.P26 was maintained accordingly. Ext.P45 was the log book of vehicle from 1/8/1997. It was signed up to December 1997. 8. Apart from the above evidence, prosecution relied on the witnesses who had been interacting with Maveli Store and had seen the first accused functioning as the manager in charge of that store. Hence, 6 Crl.Appeal No.2527/2007 the available materials clearly indicate that, the first accused was appointed as the manager in charge and was the joint custodian of the stocks along with the second accused. 9. PW7 is the MD of Civil Service Corporation who deposed that, he was the appointing authority of the first accused and hence he was competent to sanction the prosecution. His oral evidence along with evidence of PW2 was that the first accused was functioning as the manager–cum-shop in charge. Ext.P42 is the sanction granted by PW7 to prosecute the accused. It states that the first accused was a public servant. Sanction granted is not challenged by the accused. The accused is found to be a public servant and that sanction was validly granted by the competent authority. The finding of the court below on point Nos.1 and 2 was not challenged by the learned senior counsel for the appellant before this court also. 10. Before analyzing the entire evidence, the defence set up by the accused, as is evident from his reply to Section 313Cr.P.C questioning, the trend of cross examination and questions put to the witnesses, has to be evaluated. In reply to Section 313Cr.P.C questioning, the first accused stated that he was an officer on deputation from the main department. He deposed that, earlier he was the General Secretary of INTUC Union (SUPPLYCO) of the Thrissur District. According to him, during that 7 Crl.Appeal No.2527/2007 period, he had exposed various malpractices that existed in Palakkad depot. As a result, several officers were enimical to him. To retaliate, they had set up a false case against him. He deposed that, signature in the various documents were forged and relevant documents were suppressed. It was stated that, he was on leave for a long period. However, thereafter, he was compelled to sign several documents and under threat, signatures were obtained from him. He did not complain, apprehending that he may lose his job. 11. Prosecution, to establish the guilt of the accused, essentially relied on the oral testimony of PW1 and PW2 along with the documentary evidence. PW1 had inspected the Maveli store on 29/10/1997. It covered the period from 2/6/1997 to 28/10/1997. Ext.P1 is the report and Ext.P1(a) is the trade particulars. On 26/2/1998 she checked the accounts and verified the stocks for the period 29/10/1997 to 24/2/1998. Ext.P2 is the inspection report. Ext.P3 is the inventory report. Ext.P3(a) is the copy of the trading particulars. 12. The procedure regarding the supply of goods to the Maveli Store from the Civil Supplies Depot and regarding supply of non Maveli Store items from other depots were elucidated through various witnesses. PW5, the successor in office of the first accused, deposed that the goods to the Vallachira maveli shop are taken from the Thrissur depot. The 8 Crl.Appeal No.2527/2007 procedure was that, intent for required items will be prepared by the Manager in charge of the Maveli store. On receipt of it, at the depot, the goods transfer order will be prepared incorporating the vehicle number and the name and signature of the driver. It will be despatched along with the goods to the store through the driver. On receipt of the goods, Manager of store will prepare Goods Transfer Receipt acknowledging receipt of the goods and it will be returned to the depot through the driver. Stock will be entered in the register and the items will be sold against the bills. The sold items will be deducted from the stock and corresponding entries will also be made. 13. To substantiate the above process, PW1, PWs.7 to PW 17, PW19 and PW20 were examined. They tendered evidence based on several documents, evidencing the supply of specific goods to Vallachira Maveli Store. PW2 had inspected the accounts of the above store from 29.10.1997 to 24.02.1998. He had reported about delivery of few goods evidenced by consignment notes but they were not entered in the stock register. He also reported about remittance of less amount than collected and in some cases there was delay in remittance. In the absence of bill for entire period, PW2 verified the actual collection and found out shortage of remittance of Rs.62,003.70/- and commodity shortage value of Rs.66,599.30/-. This evidence of PW2, based on cogent documentary 9 Crl.Appeal No.2527/2007 evidence could not be demolished by the accused. In Ext.P7, short remittance was found as Rs.62,003.70/- and value of articles found short was calculated as Rs.1,89,178.90/- Ext.P7 was arrived at by PW2 on the basis of stock register. The remaining witness have corroborated the above evidence with records, evidencing supply of various commodities, sent to the above Maveli store and receipt of it evidenced by records. Various consignment notes were marked through PW8, PW9, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20 and PW21. The oral evidence of above witnesses, coupled with the consignment notes and corroborated by oral evidence of various drivers who have actually delivered the items, clearly establish the entrustment of the items covered by the above consignment notes to the accused at Vallachira Store. The shortage is evidenced by Exts.P7 and P8. Necessarily, the accused is bound to satisfactorily account for the loss. PW2 identified receipt No.34 in Ext.P23 which showed that 8 items were sent to Vallachira shop. First accused had acknowledged it. 14. PW1, who was the senior assistant of the Thrissur depot, gave evidence regarding the despatch of several items to Valachira store. Several consignment notes were marked through that witness to establish that those items were sent to Vallachira Store. PW9, was the driver of the official vehicle at Thrissur depot, who used to take articles to Vallachira 10 Crl.Appeal No.2527/2007 Maveli Store. Ext.P41 was the consignment note by which 11 items were handed over to the accused who was in charge of that Maveli Store. PW10 who was the Assistant Manager of the Thrissur depot had inspected Vallachira shop on 31/3/1998 and submitted Ext.P40 report. In his evidence, he had admitted that at the time of his inspection, the first accused was on leave. PW11, the Regional Manager of the Civil Supplies Corporation, Palakkad had inspected Vallachira shop and submitted the report indicating the deficit stock and short remittances. He had submitted Ext.P37, complaint to the Cherpu police station. Pursuant to that, Ext.P36 crime was registered. PW12, the senior Assistant of the Thrissur depot had stated that he had sent supplies to Vallachira shop evidenced by Ext.P22(f) and P22(g), Ext.P25 (f) and Ext.P25(g). He deposed that, he had signed those documents. PWs.13 to 17, 19, 21 proved the separate supplies to the above Maveli store. PW21 had further stated that the consignments were received by the first accused. Through PW22, the investigating officer, Ext.P60, the office manual evidencing the duties and responsibilities of the store manger and helper were marked. 15. To establish the prosecution case, regarding the actual misappropriation, shortage of stocks and criminal breach of trust, prosecution heavily relied on the evidence of PW1 and PW2. PW1 was Crl.Appeal No.2527/2007 11 the Junior Manager (Inspection) during the relevant time. He stated that he had inspected Vallachira store on 29/10/1997. The accounts for the period from 2/6/1997 to 28/10/1987 were inspected by him and Ext.P1 report was submitted. Ext.P1 (a) was the trade particulars. He submitted Ext.P2 report on 26/2/1998 covering the period from 29/10/1997 to 24/2/1998. Ext.P3 was the inventory. Ext.P3(a) was the trading particulars. There was shortage of commodities to the extent of Rs.1,02,412/-. 16 **.** PW2 was the Superintendent of Internal Audit Wing of the Civil Supplies Corporation. He had given evidence that he had verified the accounts for the period from 29/10/1997 to 24/2/1998. Ext.P7 was the audit report and two consignments dated 5/2/1998 and 9/2/1998 were not entered in the books of accounts. The actual amounts collected were not entered, which were specifically mentioned in this report. Ext.P8 was the report of PW2. The report was based on Ext.P7 stock register. Commodity short value of Rs.66,599.30 was found and short remittance found was Rs.62,003.70. In the course of cross examination of the above two witnesses, two separate defences were suggested to them. The first defence set up was that the first accused was on leave during the relevant period. Even though this was not admitted by PW1, he admitted that the first accused was on leave on the date of inspection. PW2 had admitted 12 Crl.Appeal No.2527/2007 that attendance register was blank from 1-2-1998. On the basis of it, he replied that it may be presumed that, he was on leave from 1-2-1998. The second defence set up by the accused was that it was absolutely a false case intended to trap the first accused due to trade union rivalry, which was denied by PW1. 17. The learned senior counsel for the first accused vehemently contended that, there were sufficient materials to show that the first accused was on leave during the relevant period. Attendance register was also not produced. It was contended that, several documents bearing his signature and which would have supported his case were not sent to the FSL for confirmation. It was contended that, Court itself compared the handwriting and signature and arrived at conclusions against the accused. Another contention vehemently advanced by the learned senior counsel for the accused was that, even though crime was registered on the basis of a complaint submitted to Cherpu Police, the original complaint was not produced. Criminal M.A.No1/2019 was filed to call for the above documents. However, it was not produced. It was contended that, subsequently Vigilance registered VC No.5/1999 and hence, two FIRs were in existence at same time, which was illegal. It was further contended that, hence the original case set up by the complainant at the time of filing the complaint is not available on record and hence non 13 Crl.Appeal No.2527/2007 production of the original complaint had caused serious prejudice to the accused. It was contended that, hence he is entitled for acquittal since the genesis of the crime has not been disclosed. According to the learned senior counsel, this assumes significance, since the prosecution has a heavy burden to establish that the prosecution had consistent case even from the very inception. Another contention advanced by the learned senior counsel was that the value of shortage of articles and the amount of short remittance varied from one stage to another, casting serious doubts on the genuineness of the complaint, investigation and the conclusions arrived thereon. 18. It has come on record that the accused was on leave sometime during the relevant period. It is also true that the attendance register has not been produced. The case of the prosecution was that attendance register and other documents were not properly maintained. It is seen that, several documents evidencing supply of goods to the accused and some bearing the signature of first accused were produced. Regarding those documents, contention of the learned counsel was that, those documents were not sent to the FSL for confirmation of the signature and to establish the genuineness of those documents. According to the learned senior counsel, this was essential in the light of defence set up that, several documents were manipulated with signatures forcefully 14 Crl.Appeal No.2527/2007 obtained from the first accused on blank papers. According to the court below, PW10 had given evidence that the first accused was absent on the date of inspection and that, he knew that the first accused had filed a leave application. However, absolutely no document was produced by the first accused to show that he was on leave during the entire relevant period. Ext.P44 was the attendance details of the employees maintained by the district depot for the period from 29/10/1997 to March 1998. It is seen that accused was on leave during February 1998 and he attended the office on all the other relevant dates. However, the period of misappropriation covers the period from 02.06.1997 to 28.10.1997 and from 29.10.1997 to 24.02.1998. The first accused has acknowledged the receipt of salary during the above period. Ext.P2 is the pay roll for the month of January 1998 . In that pay for the month of November and December 1997 are seen. Apart from these, there are several goods transfer receipts evidencing delivery of goods to the first accused covering the above period. Some witnesses have given oral evidence that the goods covered by the good transfer receipts sent through them were received by both accused. It establishes not only that he was on duty on the relevant day but acknowledged the entrustment of goods to him. 19. It is true that regarding the actual amount missing as well as the shortage of goods, there is some variation. On discovery of more 15 Crl.Appeal No.2527/2007 materials, the details of shortage and the value may fluctuate. However, that does not by itself cast doubt on the genuineness of the above allegation. Further, even assuming that the accused was absent on certain days that by itself is not a ground to disbelieve the entire version. Learned Special Government Pleader for Vigilance relied on the decision reported in **Shiv Shankar Prasad Singh v. State of Bihar(AIR 2019 Supreme Court 1190)** . In that case, there was some variation from the actual number of missing bags from the number mentioned in the FIS. The Apex Court held that merely because misappropriation of 540 bags was mentioned in the initial complaint, the Court cannot ignore the charge sheet which revealed misappropriation of higher number of bags.which was laid after investigation, 20. Learned counsel also relied on the decision reported in **Jaikrishnadas Manohardas Desai and another v. State of Bombay (AIR 1960 Supreme Court 889 (V 47 C 154),** wherein it was held that physical presence of the accused is not essential in every instance of conspiracy, found in the case of common intention. It was also held that normally in the case of misappropriation, it is to be established by direct evidence. However, to establish a charge of criminal breach of trust, prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property Crl.Appeal No.2527/2007 16 entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of any obligation to account for the property entrusted, if proved may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. Learned Public Prosecutor also relied on the decision of this court in **Vijayakumar K. v. State of Kerala (2016 (2) KLD 498)** to contend that, once entrustment is established, then the burden shifts to the accused to prove that there was no misappropriation and to explain irregularities found in the disbursement of goods. The first accused failed to explain the shortage of goods and short remittance. 21. Exts.P7 and P8 are the two reports submitted by the officer after inspection. In Ext.P7, it was noted that the first accused was not present in the store from 1-2-1998. It was found that the attendance 17 Crl.Appeal No.2527/2007 register did not have the entries for the month of January as per the attendance sheet maintained by the Assistant Manager for the period 16/12/1997 to 15/1/1998. Accused was found present on 23 days out of 25 working days. It was also found that the bills available did not cover the entire period. Several records were not properly maintained. It was found that, there was no entry in the receipts for sale of few items. Reports give in detail the mistakes in the records, the difference in the actual collection of the amounts and that was remitted. Detailed explanation as to how, on the basis of the augment stock receipts, sales, transfer of physical stock and remittance are worked out are available in the reports. Ext.P7(a) is the trading particulars which gives the details of the transaction, shortage in stock as well as the less remittances. Ext.P8 is the second report relating to the subsequent period. This is supported by Ext.P8(d), the trading particulars of the said store. These particulars of the difference in the stock and cash are mentioned in the above report. To that extent, the allegation set up by the prosecution stands established. The accused who were bound to maintain proper registers and records and who failed to properly maintain it cannot take up the plea of lack of documentary evidence, when misappropriation is established through other evidence. 18 Crl.Appeal No.2527/2007 22. Another contention seriously set up by the learned senior counsel for the accused was that, the disputed documents bearing the signature of the accused were not sent to the FSL for expert report. It was contended that to that extent, the evidence was unreliable. To answer this, the learned Special Government Pleader relied on the decision reported in **Ajit Savant Majagavi v. State of Karnataka (AIR 1997 Supreme Court 3255)** . In that case, the Hon'ble Supreme Court held that, though the Indian Evidence Act permits two methods of proving the handwriting on the basis of the report of an expert or on the basis of evidence of person who was conversant with the signature of the concerned person, it was held by the Supreme Court that as an abundant caution, it was not safe for the court to venture to get the document inspected by itself. However, that does not mean that the court is not empowered to compare the signature with the admitted signature. It was held that such a method of getting examined through the expert would arise if the court has even the slightest of doubt. It is seen that the court below has undertaken the exercise of comparing the signatures. The signatures of the first accused in Ext.X1 and X2 and in the concerned consignment notes were compared by the trial judge with the admitted signature in the vakalath and the statement under section 313 Cr.P.C., given by the accused. The court unequivocally concluded that, they were Crl.Appeal No.2527/2007 19 too similar with the admitted signature. This conclusion is supported by other evidence also. 23. Having re-appreciated the entire evidence, I find no reason to doubt the method of evaluation adopted by the court below. No prejudice is seen caused to the accused. It is evident that even though several defences were set up by the first accused, none of the defence merit consideration in the above circumstances. 24. I find that the court below, on a proper appreciation of the facts and evidence, has arrived at a proper conclusion that the accused has committed offence alleged against him. Regarding the sentence, the court below has imposed RI for four years and a fine of Rs.20,000/- each in default to undergo RI for three months each for offences punishable under section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act. Accused was sentenced to undergo RI for four years and to pay fine of Rs.20,000/- in default of which to undergo RI for three months for offence punishable under section 409 IPC. Accused also undergo RI for four years and to pay a fine of Rs. 20,000/- in default to undergo RI for further period of three months for offence punishable under section 477A of IPC. It was directed that, sentences shall run concurrently. Crl.Appeal No.2527/2007 20 25. It is seen from the records that, crime is of the year 1997. The accused has been facing prosecution since long. It is stated by the learned senior counsel for the accused that he has since retired. Having considered these facts, I feel that the substantive sentence imposed by the court below is on the higher side. I am inclined to take a lenient view and to impose on the accused the minimum statutory sentence. In the result, the appeal is allowed in part by sustaining the conviction by modifying the sentence. The sentence is modified to RI for one year each and fine of Rs.10,000/- for offence under section 13(1)(c) read with section 13(2), one year RI an fine of Rs.10,000/- for offence punishable under section 409 IPC and RI for one year for offence punishable under section 477A IPC. If the fine is not remitted, he shall undergo SI for 15 days each. All the sentences shall run concurrently. Set off is allowed. Bail bond executed by accused is cancelled. **Sd/-** **SUNIL THOMAS** dpk **JUDGE**