T.K.Satheeshkumar vs State Of Kerala
2021 Latest Caselaw 13899 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
      TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                            CRL.A NO. 551 OF 2013
AGAINST THE ORDER/JUDGMENT IN CC 39/2005 OF ENQUIRY COMR.& SPECIAL
                                JUDGE,., KOZHIKODE
APPELLANT/4thACCUSED:

            T.K.SATHEESHKUMAR,
            S/O.KRISHNAN,SABU NIVAS,THAZHETHOOR PO, CHEERAL
            VILLAGE, WAYANAD DISTRICT.

            BY ADVS. SRI.S.SREEKUMAR (SR.)
            SRI.P.MARTIN JOSE
            SRI.M.A.MOHAMMED SIRAJ
            SRI.P.PRIJITH
            SRI.THOMAS P.KURUVILLA



RESPONDENT/COMPLAINANT:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.

OTHER PRESENT:

ADV.S.SREEKUMAR (SR) FOR APPELLANT

SPL.GP SRI.A RAJESH

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2020, ALONG WITH CRL.A.570/2013, THE COURT ON 6/7/2021 DELIVERED THE FOLLOWING:

CRL.Appeal Nos551/2013,570/2013 2

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943 CRL.A NO. 570 OF 2013 AGAINST THE ORDER/JUDGMENT IN CC 39/2005 OF ENQUIRY COMR.& SPECIAL JUDGE, KOZHIKODE APPELLANT/2ND ACCUSED:

M.APPUKUTTY, RAJENDU QUARTERS, THURKKI BAZAR, KALPETTA, FORMER U.D.CLERK, DISTRICT LABOUR OFFICE, WAYANAD.

BY ADVS.

SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER

RESPONDENT/COMPLAINANT:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

            SPL.P.P.SRI.A.RAJESH


     THIS   CRIMINAL   APPEAL    HAVING    COME   UP   FOR   ADMISSION   ON

16.06.2020, ALONG WITH CRL.A.551/2013, THE COURT ON 6/7/2021 DELIVERED THE FOLLOWING:

COMMON JUDGMENT [CRL.A Nos.551/2013, 570/2013]

The 4th and the 2nd accused in CC No.39/2005 of the Enquiry

Commissioner and the Special Judge Kozhikode for offences punishable under

sections 13(1)(c) & 13(1)(d) read with section 13(2) of the Prevention of

Corruption Act 1988 and under sections 201,409 420,465 , 468 and 471 read

with section 34, IPC are the appellants herein.

2. The crux of the prosecution allegation was that the first accused was

the district labour officer of Wayanad. The second accused was the UD clerk in

that office, the third accused the junior superintendent and the fourth accused,

the LD clerk of the above office.Certain employees of one Makkimala estate

alleging that they were not paid the arrears of gratuity due to them, approached

the labour court and obtained orders in their favour. Pursuant to the orders,

revenue recovery proceedings were initiated against the employer. A sum of

Rs.2,51,749/- was remitted by the employer in the taluk office, Mananthavady,

towards partial discharge of the above liability. A sum of Rs.1,35,933/- was

remitted on 7/3/2001 and the remaining sum of 1,16,320/- was remitted on

13/3/2001 totaling to the said amount of Rs.2,51,749/-. Thereafter, a demand

draft for the above sum after deducting the DD commission was sent to the

District Labour Office, Wayanad. The amount was encashed and was kept in

the account of the DLO office. Thereafter, it was withdrawn by self drawn

cheques. According to the prosecution, the amounts were released to various

beneficiaries during March 2002. A total sum of Rs.70,323- was not disbursed CRL.Appeal Nos551/2013,570/2013 4

and was allegedly not brought on account. It was not deposited in the cash box

also till 22/1/2003. Thereafter, the first and the second accused allegedly

created forged receipts to make it appear that the balance amounts were paid

to the beneficiaries. The above receipts were kept in the registers pursuant to

the complaint of misappropriation. when enquiry started 4th accused , who

was the LD clerk, caused disappearance of cash receipt from the file, to save

co-accused. Crime was registered, investigation was conducted and after the

completion of the investigation, final report was laid alleging commission of

offences by the above four accused. Pending the proceedings, accused Nos.

1 and 3 died and the charge against them abated. Accused Nos. 2 and 4 faced

the trial. On the side of the prosecutions, PW1 to PW38 were examined and

Exts.P1 to P63 were marked. There was no defence evidence, Ultimately on

the basis of the evidence tendered, the court below found that the amount was

misappropriated temporarily by accused Nos. 1 to 3 and the 4 th accused had

caused the disappearance of the forged receipts to screen accused Nos. 1 to 3.

The second accused was found guilty for offences punishable under section

13(1)( c) and 13 (1) (d) read with section 13 (2) of PC Act, convicted and

sentenced to undergo RI for one year and to Pay 10,000/- as fine. In default,

to undergo one month for each of the offence found against the accused. The

4th accused was found guilty of offences punishable under section 201 IPC,

convicted and sentenced to undergo six months imprisonment and a fine of

Rs.10,000/- with a default sentence. Aggrieved by the above sentence, the

accused have preferred this appeal.

3. Heard the learned senior counsel for the 4th accused and the

learned counsel for the 2nd accused and the learned Special Government

Pleader for the Vigilance. Examined the records.

4. The prosecution has a specific case that the accused 1 to 4 being

public servants, they could be prosecuted only with the sanction of the

competent authority. To substantiate the sanction, Ext.P62 was relied on by the

prosecution. It was marked through PW38, the investigation officer. The

cross examination of the accused show that the validity of Ext.P62 was not

challenged in any manner by the accused. Hence, it has only to be held that

accused Nos. 2 and 4 were prosecuted pursuant to valid sanction granted by

the competent authority.

5. Both the accused had definitely referred to their defence in the

answers given in questioning under section 313 Cr.PC,The second accused in

his section 313 Cr.P.C answers contended that, matters relating to gratuity in

the district labour office, Wayanad was not done by him .All transaction relating

to gratuity was carried on by the District Labour Officer along with the junior

superintendent.

6. The 4th accused has filed a detailed reply in answer to the questioning

under section 313 Cr.P.C. It was stated by him that he has not committed any

mistake and that he was wrongly implicated in the case. It was stated that,

while working as the LD clerk in the District Labour office Wayand, he has not

dealt with any of the files relating to gratuity. He has not dealt with any file

relating to the payment of gratuity to the employees of Makkimala Tea Estate.

All the files were dealt with and records relating to it were handled by the

District Labour officer of the office. It included receipt of money, entering of it in

the record and disbursement of the amount after identifying each of the

accused. He was assisted by the junior superintendent of the above office. All

the files in relation to it were in their possession and the accused was not

permitted to deal with that files. He also stated that pursuant to the revenue

recovery proceedings, an amount of Rs.2,51,749/- was received and forwarded

by the Tahsildar of Manandavadi by DD to the District Labour Office, Wayanad.

On receipt of it, the District labour officer had authorized the 4 th accused to

collect the money. It was so done and the amount was handed over to the first

accused. Apart from that he has not committed any mistake. He also stated

that all the employees in the office were working under the directions of the

district labour officer and files were handled by each section clerk on the

directions of the DLO from time to time.He denied the allegations raised by

PW37 that the above accused had dealt with Ext.P22 to P45 files in C section

by the 4th accused. The allegation that the files in relation to C section was put

up by the section clerk of section C and that he was the custodian of the files of

gratuity were also not correct . It was also stated that in the office order there

was no entry that the section clerk of C section was bound to maintain the

records relating to gratuity.

7. The Defence set up by the accused has to be evaluated on the basis of

the above.

8. The specific case of the prosecution is that, pursuant to the revenue

recovery proceedings, a total sum of Rs.2,52,253/- was received by the taluk

office which was forwarded by the taluk office Mananthavady to the DLO office.

PW2, is the junior superintendent of the Manadavadi taluk office. He, relying on

Ext.P14 receipt book deposed that a sum of Rs.1,35,933/- was deposited by the

Management of Makkimala estate on 7/3/2001 as evident from receipt No.57

which was marked as Ext.P14A. Another remittance of Rs.1,16,320/- evidenced

by TR 81 dated 3/3/2001 was produced and marked as Ext.P14b. He asserted

that the amount was forwarded to the DLO Wayanad. This version was

corroborated by PW7, who was the tea maker employed in the Makkimala

estate. He deposed that a sum of Rs.2,52,253/- was remitted by him on behalf

of the estate towards the gratuity arrears in the taluk office. He submitted that

Ext.P22 was the statement of the employees who were engaged in the estate

and pages 13 to 15 show the amounts due to each person. PW37 who was the

DLO of Wayanad, who succeeded the first accused after few years in 2004,

deposed that Ext.P22A was a covering letter found in Ext.P22 file. It shows

that a demand draft for a sum of Rs.2,51,749/- which was the amount after

deducting the DD commission which was forwarded from the taluk office to the

DLO office. Ext.P22A showed that it was received on DLO office on

26/3/2001 .

9. Hence the above materials are sufficient to establish that a sum of

2,51,749/- was sent to the DLO office by way of DD which was admittedly

received by the labour office.

10. To establish that the amount was received by the labour office

Wayanad and that the amount was withdrawn from the bank under the

instructions of DLO,. Prosecution relied on evidence of PW3, PW4 and PW 37.

PW3 was the Assistant district treasury officer, Wayanad who, relying on the

account ledger relating to the DLO office, Wayanad, asserted that a sum of

Rs.2,51,749/- by way of DD was received. Ext.P17 was the passbook of DLO

office which showed that a DD for Rs.2,51,749/- was deposited on 7/4/2001.

The amounts were withdrawn on various dates thereafter by self drawn

cheques. The above version is corroborated by PW4 who was the deputy

manager of SBT, Kalpetta. According to him, the DD for Rs.2,51,749/- was

produced evidenced by Ext.P19. Ext.P20 was the letter of the DLO, Wayanad

dated 27/3/2001 requesting to make payment to T.K.Santhosh Kumar, the LD

clerk who is the 4th accused. Regarding Ext.P19, PW4 stated that the reverse

of it indicated the signature of the 4th accused.

11. PW7 in his evidence had stated that Ext.P16A ledger and P17

passbook showed that an amount of Rs.2,51,749/- referred to in Ext.P22A was

received by the office and deposited in the TP account. It was also drawn by

self cheques. Receipts were not referred to in Ext.P12, security register and

Exts.P13 and P46 cash register .Withdrawal was also not mentioned therein.

12. The above materials clubbed with the statement given by the 4 th

accused in answer to Section 313 Cr.P.C.questioning clearly showed that the

amount of Rs.2,51,749/- was received by the DLO office, DD was presented for

collection and the 4th accused had collected it under the directions of the first

accused, the DLO.

13.The specific case of the prosecution is that the amounts so due to the

various employees were released to them belatedly and also that they were not

given the full amounts due. To support this allegation, PW38 to PW33 who

were the former employees of the estate or their relatives were examined.

PW8, who was employee of the Makkimala estate, stated that he was paid the

part of gratuity amount in 2000. The receipts were marked as Exts.P30A in

Ext.P35. He, in his evidence asserted that, the signature in a receipt shown to

him attested by the Junior Superintendent was not his signature. The version

of the above witnesses who were the former employees of the Makkimala

estate or close relatives of the deceased accused clearly showed that they were

not given the full gratuity amount due to them and amounts are stated to be

paid in instalment. Most of them denied having received the second

instalment and the signatures purported to be issued by them as recovered by

the investigating agency from the office were not signed by them.

14. To establish the criminal liability on the accused and to contend that

the 2nd accused and the 4th accused were respectively in charge of the

respective offices of A and C sections, they relied on the evidence of various

witnesses.

15. The crux of the prosecution allegation, as against the accused is that,

though the Estate had deposited arrears of Rs.2,51,749/- towards the gratuity

arrears which was forwarded by the office of the tahsildar of Wayanad to the

Manandavadi office of the DLO, it was not entered in Ext.P12 cash register.

However, the first accused got it encashed. Out of which, substantial amount CRL.Appeal Nos551/2013,570/2013 10

was distributed among the claimants in the gratuity cases . A sum of

Rs.70,323/- was not disbursed which was kept by them. It was further alleged

by the prosecution that, forged document to evidence that the remaining

amounts were disbursed among the claimants were prepared and kept in the

concerned registers. At the time of enquiry conducted by the inspection wing

pursuant to the complaint raised regarding the non disbursement of the balance

amount, the inspection team found the receipts in the registers. The

photocopies of those were taken and got it attested by the junior

superintendent. Subsequently, when the crime was registered in the course of

investigation, it was found that the above documents were missing. The crux of

the allegation was that the above documents were forged and the 4th accused

who was the custodian of the above records caused the disappearance of the

above receipts to screem accused Nos 1 to 3 from the above crime. Hence, the

prosecution alleged that accused 1 and 2 had misappropriated the amount for

which, the third accused who was in charge of the establishment and account

section C assisted and thereby committed criminal conspiracy and breach of

trust. Regarding the allegation as against the 4 th accused, the limited

allegation is that he had caused disappearance of the above records.

Essentially there is no direct evidence to show that the disputed receipts were

caused to be vanished by the 4th accused.

16.The specific allegation of the prosecution was that, by virtue of

Ext.P50 office order dated 6/7/2000, A section was in the charge of the second

accused. The 4th accused was the clerk in charge of C section. The further CRL.Appeal Nos551/2013,570/2013 11

allegation of the prosecution was that, C section dealt with the amounts

received as gratuity claim and such files are dealt with by the second accused.

This is stoutly denied by the second accused. The 4 th accused on the other

hand contended that, though he was the section clerk of section C and that

office order dated 6/7/2000 revealed that he was in charge, the concerned

records were not utilized by him and were not dealt with by him. According to

the second accused, though he was the section clerk in charge of A section,

he was not entrusted with the files relating to the gratuity claims. The contention

was that such files were directly dealt with, by the DLO himself with the

assistant of a junior superintendent.

17. The trial court ultimately found that there was no misappropriation of

the amount but there was a belated payment portion of the gratuity amount and

it can only be a case of a temporary misappropriation. The court below relied

on Ext.P50 to arrive at a conclusion that the 2 nd accused is responsible for the

files relating to gratuity and thereby without his connivance the amounts could

not have been misappropriated even though temporarily. It is pertinent to note

that Ext.P50A, which is the concerned office order, does not specifically referr to

the files dealt with by each section clerk. The court below also found that the

criminal intention of misappropriation was revealed from the records. It was

also alleged that the court below found that the forged receipts were prepared

to claim compensation payable to the claimants. It was also found that those

receipts revealed that there was endorsement regarding payment of amounts

in those receipts. The claimants had denied having executed such receipts. CRL.Appeal Nos551/2013,570/2013 12

The court ultimately found that there was no evidence to show that the second

accused had any role in the preparation of the receipts. This seems to be

correctly found by the court below since there was absolutely no records to

show that the second accused had any role in the preparation of the receipts.

Regarding the criminal breach of trust, it was found by the court below that to

commit criminal breach of trust, there must be entrustment of amount to the

second accused. The court on the basis of available materials found that that

there was no evidence on record to prove that the amount was entrusted

directly to the second accused. Evidence only reveal that the second accused

had assisted accused Nos. 1 and 3 in misappropriating the amount and he has

joined them with them when they misappropriated the amount by sharing

common intention to misappropriate the amount. So ultimately court concluded

that the second accused had not committed criminal breach of trust. The court

also found that the second accused was not liable for forgery of documents.

The court found that the only allegation proved against the second accused

was criminal misconduct and misappropriation of the government fund and

sharing of criminal intention to misappropriate the funds of the government

along with the deceased accused No. 1 and 3.

18. Regarding the role of the 4 th accused, the court relied on Ext.P50A

office order to hold that he has duty bound to deal with the files. The court also

referred to various files which indicated that those files were generated from C

section. It was essentially based on the reference number given on those files

to conclude that Ext.P50 onwards files had number C attached to the file CRL.Appeal Nos551/2013,570/2013 13

number which indicated that those files were generated from the C section. On

the basis of the above, the court below concluded that the 4 th accused has

dealt with the files and thereby the original receipts which was vanished can

only be the connvyenace of the above accused. Ultimately, the 4th accused was

found guilty for offences punishable under section 13 (1)(c ) & 13 (1) (d) read

with section 13 (2) and section 201 IPC read with section 34 IPC.

19. The prosecution essentially relied on the oral testimony of

PW1,PW3,PW16 PW34,PW35, PWs36 & 37 along with oral testimony of

PW38, the investigating officer. As mentioned earlier, there is no doubt that the

amount which was forwarded by DD to the DLO office was the receipt and

encashed. This is proved from the pass book as well as the evidence given by

the concerned witnesses. It is also come on record that substantial portion of

the amounts were released to the concerned claimant except Rs.70,000/-. The

disputes revolves around its disbursement. To establish that the second

accused was responsible for dealing with the files of gratuity and the 4 th

accused being the section clerk of C section was bound to maintain the certain

records touching on the gratuity, the prosecution relied on the above oral

testimony.

20. It is pertinent to note that regarding the responsibility of the accused

Nos 2 and 4, the court below essentially relied on Ext.P50A office order. As

indicated above. Ext.P50A only indicates that the second accused shall be

responsible for section A and the forth accused shall be responsible for

section C. There was a junior superintendent, who was above above accused CRL.Appeal Nos551/2013,570/2013 14

Nos.2 and 4 in hierarchy. They were controlled by the DLO in the hierarchy.

The DLO and the junior superintendent stand accused as accused Nos. 1 and 3

respectively. Their role seems to have been misappropriation seems to have

been indicated by the court in the above evidence. Though some materials

have been relied on by the court below to make it appear that the disputed files

were dealt with by the second and fourth accused respectively. Apart from the

oral evidence tendered by the few witnesses, there is no expert opinion

regarding the actual handwriting seen on any of the records to establish

conclusively that the disputed files were dealt with by the second accused and

the forth accused respectively. Prosecution essentially relied on the oral

testimonies of the officers who were worked along with the second and fourth

accused and those who succeeded them.

21. PW1, the junior superintendent of the DLO office, Wayanad who

had succeeded the third accused and who also officiated from 30/10/2003

deposed in accordance with the prosecution case substantially. He stated that

regarding the procedure adopted in the office on receipt of the DD for the

amounts due towards gratuity,the first step is to enter that in Ext.P12 security

register. Thereafter, it is credited in the account of DLO. On encashment of the

DD that is entered in Ext.P13 cash book. He asserted that the receipt of the

DD from the Tahsildar is not seen entered in the Ext.P12 security register and

as well as in the cash book. However, in the course of the cross examination

PW1 admitted that normally the parties are identified by the DLO and he makes

disbursement of the amount. In each case collection, payment and balance CRL.Appeal Nos551/2013,570/2013 15

amount due are entered and signed duly by the DLO. He is assisted by the

Junior Superintendent. It is pertinent to note that the evidence of PW1 was

insufficient to show that the second accused had handled the files relating to

the gratuity disbursement.

22. PW35, was the inspecting officer of the Wayand District Finance

Inspection Wing. He deposed that pursuant to the complaint received he had

inspected the DLO office and submitted the report. The report was produced

before the court and marked. He gave evidence to the effect that Exts.P3,

P53, P54,P55,P56,P57 and Ext.P58 are the files in relation to the gratuity cases

No. 51/2001, 50/1999 GC32/1999, GC34/99, GC51/1999, GC40/1999,

GC35/1999 and GC34/1999. The original receipts of it were found in the

concerned file at the time of inspection. He got the copies of it taken and it was

attested by the Junior Superintendent. Hence, Exts.P53 to P58 are the

attested copies of the receipts which were found in the DLO office. He has

admitted that the original of those files were not seen now in Ext.P45 file,

Ext.P27 file, Ext.P20 file, Ext.P29 file, P30 file and P35 files. He also admitted

that as on the date of inspection, the only cash balance as per the cash register

was Rs.50/- and that was the only amount seen in the cheques. The evidence

of the above witness, clearly shows that the original receipts evidencing

balance payment were seen at the time of inspection but have not seen

subsequently. However, the evidence so given by the above witness is not

completely free from doubt. He admitted that his assistant had verified the files

which was re verified by him. and the report was prepared by him,. However, CRL.Appeal Nos551/2013,570/2013 16

he admitted that normally when files are verified by him, he would initialed

those records verified by him. However, he admitted that in the course of

evidence that none of the records contained his initials. A specific suggestion

was put by the accused to the witness that, since he had not inspected the

registers, his initials entered not seen. The above was denied by him. It is

pertinent to note that in the case of Exts.P53 to P58 documents, no attempt

was made by the prosecution to establish the handwriting of the persons who

had entered it. Had such handwriting been established that would have gone a

long way in proving the forgery and the complicity of any of the accused.

23. The two other crucial witnesses relied on by the prosecution were

PW36 and PW34.The significance of those witnesses are that they were in the

office during the relevant time. PW36 in his evidence stated that he was the

LD clerk in Wayanad DLO office from 9/4/1994. He also admitted that he had

worked with the accused. However, he asserted that he did not know who

wrote Ext.P52 an P52A. He was declared hostile and was cross examined.

Though he admitted that he had seen documents containing the handwriting

and the signature of the accused, in the course of cross examination, he could

not identify the handwriting in any of the disputed documents. He also asserted

that he could not identify the handwriting in the various documents. He also

could not identify specifically the handwriting seen in Exts.P53 and P25(a). He

denied the suggestion that, he had revealed to the investigation officer at the

time of recording the statement that Ext.P25(a) was in the handwriting of the

second accused. He also did not reveal to the investigating officer that the CRL.Appeal Nos551/2013,570/2013 17

entries in Ext.P53 was that of the second accused. He also said that he did not

tell the investigating agency that he can identify the handwriting of the accused.

24. PW34 was the LD clerk of the Wayanad DLO office from 19/4/2000.

He could identify all the accused. He admitted that Ext.P50(a) office order

dated 6/7/2000 was issued . However, he deposed that A section deals with the

accounts of the establishment and also the accounts relating to salary. He

deposed that he does not know who was dealing with the amounts received by

way of gratuity. He also turned hostile and did not support the prosecution

case.In the cross examination by the prosecutor, he admitted that he did not

tell the police that A section clerk was dealing with the Demand Drafts.

However, he admitted that he told the police that the details regarding the

receipt of DD, encashment and deposits and that the disbursement are to be

entered in the cash book by section clerk of A section. He admitted that ,

whatever he has said to the investigating officer was correct. He admitted that

Ext.P12 register shows the receipt and distribution of the DD amount cash

register. According to him, he does not know whether a clerk was specifically

deputed to enter the transactions in the cash book relating to the gratuity

amount to help the DLO. He also admitted in the cross examination that the

office order does not specify the files to be dealt with by each section clerk. He

also asserted that he had not reveal to the investigation officer the person who

had dealt with the gratuity file.

25. Another crucial witness examined by the prosecution was that the

DLO of Wayanad from 2004 onwards. He also admitted that there was no entry CRL.Appeal Nos551/2013,570/2013 18

regarding the receipt of DD in Ext.P12, security register. Corresponding entries

are not seen in Ext.P13 and P46 cash books. He gave evidence that, the

disputed receipts are not seen in the corresponding files. According to him, he

had informed the vigilance that files were put up by the C section clerk for the

payment of the money. According to him, this was the practice followed during

his period and to his information even before that. He also deposed that,

custodian of the gratuity files in the clerk of C section. He stated that the

original records of the receipts are not seen, photocopies of the same must

have been placed on it.

26. On an evaluation of the above materials, it is clear that two crucial

witnesses who are the PW36 and PW34 who had in fact worked along with the

accused did not support the prosecution case in so far as it touches the duties

of the second and forth accused. It is true that Ext.P58 generally states that

the concerned section clerk are responsible for the section. Apart from that, the

second accused had specifically dealt with gratuity file, is not established

beyond reasonable doubt by the prosecution. The Court below also found

that , though the misappropriation was committed by the first and third

accused, the second accused had only mirely aided them. In the absence of

any monitory benefits alleged by the prosecution on indicated through any of

the witnesses. it is very difficult to believe that the 2 nd accused would have

been a privy to such a conspiracy and such misappropriation by accused 1 and

3 without any financial benefits risking his on job. Further, the best evidence

would have been to establish that, gratuity files contained the handwriting of CRL.Appeal Nos551/2013,570/2013 19

either the second or the fourth accused by any of the person who was

conversant with the transaction or by establishing the handwriting through an

expert. Both these are not attempted nor proved by the prosecution. Hence, it

is clear that the evidence available on record is not sufficient to cast the burden

on the above two accused ,though the complicity of the accused Nos.1 and 3

have been indicated by the court below. Having considered this, I am inclined

to hold that the accused Nos 2 and 4 are entitled for the benefit of doubt.

In the result, the conviction and sentence imposed by the court below

stand set aside. The appeals stand allowed. The accused are acquitted, giving

the benefit of doubt. The bail bond executed by them stands discharged.

Sd/-

SUNIL THOMAS

Judge

dpk