Kerala High Court
H.Kaleeludeen Kunju vs The State Of Kerala on 15 March, 2021
Crl.M.C.2081/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 15TH DAY OF MARCH 2020 / 4TH PHALGUNA, 1942
Crl.MC.No.2081 OF 2019(A)
AGAINST THE ORDER/JUDGMENT IN CC 3/2018 IN VC NO.01/2015/KOLLAM
VIGILANCE AND ANTI-CORRUPTION BUREAU BEFORE THE ENQUIRY
COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM CRIME NO.1/2015 OF VACB,
KOLLAM
PETITIONER/ACCUSED NO.2:
H.KALEELUDEEN KUNJU,
AGED 58 YEARS
FORMER DISTRICT LOTTERY OFFICE, KOLLAM NOW RESIDING
AT AMPISSERIL HOUSE, KADATHOOR.P.O., THAZHAVA,
KOLLAM.
BY ADVS.
SRI.C.P.UDAYABHANU
SRI.NAVANEETH.N.NATH
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI-CORRUPTION BUREAU, KOLLAM
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR FOR
VIGILANCE, HIGH COURT OF KERALA, ERNAKULAM.
SPL.GOVT.PLEADER A.RAJESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-
08-2020, THE COURT ON 15-03-2021 PASSED THE FOLLOWING:
Crl.M.C.2081/2019 2
O R D E R
The second accused in C.C.No.3/2018 arising from
V.C.No.01/2015/Kollam Vigilance and Anti-Corruption Bureau on the
files of the Enquiry Commissioner,Special Judge, Thiruvananthapuram
for offences punishable under section 13(2) read with section 13 (1)(c)
of the Prevention of Corruption Act 1988 read with sections 120(B),
406,409,420,201,202 and 477(A) of IPC is the petitioner herein.
2. The case of the petitioner is that, he was the District Lottery
Officer and the first accused was the cashier, in the office of the District
lottery office, Kollam during the period from 29/7/2011 to 16/2/2013.
While so, the present case was registered by the Vigilance pursuant to a
search conducted in the office and the investigation thereafter. The
crux of the allegation as is revealed from the final report produced as
Ext.A1 is that, the petitioner entered into a criminal conspiracy with the
first accused to falsify the accounts in the subsidiary cashbook, main
cash book, Treasury Remittance chalan, and bank guarantee register
during the period from 2011 to 2012 and thereby misappropriated a
total sum of Rs.2,29,325/- including Rs. Rs.52,279/- from the credit sale.
During the period from 2012 to 2013, a sum of Rs.81,33,975/- was
collected from the lottery agents, promising them to issue lottery
tickets. It was also misappropriated. Later, Rupees 77 lakhs was
remitted in the treasury. Both the accused by falsification of accounts,
misappropriated a total sum of Rs.1,30,37,409/-. There is a further
allegation that second accused had concealed this from the notice of
the superior officers to screen both accused from action. On the basis
of the final report filed, case was taken cognizance of and final report
was filed. Summons was issued to the accused. Challenging the final
report, the second accused has approached this court.
3. Assailing the final report, the learned counsel for the petitioner,
contended that the records would show that, it was the petitioner herein
who, on getting information about the misappropriation by the first
accused, initiated proceedings against him and reported the matter to
the higher authorities. He relied on Exts.P1 to P12 to support this
contention. It was also contended that he cannot be burdened with any
criminal liability in so far as the acts were committed by the first
accused. First accused had given letters in writing admitting that he
alone committed the misappropriation and nobody else was responsible
for that. It was also contended that even if there was any supervisory
latches, he along with the Assistant District Lottery Officer and
Superintendent was exercising supervisory control over the first
accused and all of them should have also been charged for that.
However, they were left without any allegation. The Vigilance confined
to the petitioner and the first accused with the intention of roping in the
second accused in the crime, committed by the first accused. It was
also contended that the crime registered on the basis of the complaint
submitted by the lottery agents was also clubbed with this and the
investigation into both the crimes together was beyond the provisions of
law and hence legally not sustainable.
4. Ext.P2 is a memo dated 3/2/2013 issued by the second accused
to the first accused. It is regarding the huge difference in the accounts
and the first accused was called upon to give his reply to the above
memo. Ext.P8 clearly shows that it was pursuant to a vigilance
verification conducted on 30/1/2013, in which they had verified the
various registers and records maintained in the office. It was alleged
therein that huge difference in the sale proceeds was found. Ext.A3 is
the reply given by the first accused. In the reply he had stated that if
there is any mistake, it may be due to the remittance in credit sale or
bank guarantee remittance or due to mistake in entering in the
computer. He requested for deputing experts from Keltron for assisting
him in ascertaining the computer data. By Annexure.A4 date 7/2/2013,
the second accused requested the state lottery director to arrange for
experts from the Keltron for checking the computers and also to
arrange internal auditors.
5. It seems that the second accused was on leave on 8/2/2013. On
that day, a note was put up by the Assistant District Lottery Officer, who
was in charge, mentioning that as per the cash book of that day, a
deficit of 72,44,273/- was found. She had informed that she would sign
the cash book only after proper explanation was given for the deficit.
Pursuant to the above letter, Annexure A6 memo was issued by the
second accused to the first accused, calling upon him to produce the
chalan for the amount liable to be deposited in the treasury. Annexure
A7 is the reply given by the first accused, in which he had stated that
the Assistant Lottery Officer had refused to verify the records and even
the denomination of cash available. On detailed enquiry, it was found
that there was a cash balance of Rs.57,91,000/-. He agreed to remit that
amount same day itself. It seems that, he remitted that amount.
However, it was informed by the second respondent by Annexure A8 to
the first accused that he should remit the entire amount on 8/2/2013
and produce the chalan before the second accused. On 8/2/2013,
Annexure A9 charge memo was issued by the second accused alleging
that though the first accused had got treasury chalan signed from the
second accused for Rs. 1,69,15,338/-, a sum of 57,58,840/- alone was
remitted. Alleging that he had committed misappropriation of the
balance amount of Rs. 1,1,56,498/-, a charge memo was issued to the
first accused calling upon him to explain. By Anenxure 10 reply dated
8/2/2013, the first accused admitted that the shortage found was the
amount which he had misappropriated during various dates, without
informing and without the knowledge of any other officer. He
undertook to remit the balance amount on or before 11/2/2015.
Virtually, the reply indicates that he has taken over the entire liability by
himself. Ultimately, Annexure 12 report dated 12/3/2013 was submitted
by the second accused to the State Lottery Director detailing the entire
communication and alleged that the first accused had committed
misappropriation. Necessary action was called for against the first
accused.
6. It seems that pursuant to that a preliminary enquiry was
conducted by the deputy director and the finance officer. Annexure A13
is the report, which indicates that serious irregularities have to come
light and the matter needs to be investigated. It was pursuant to the
above report that the complaint was laid before the Vigilance, which
registered the crime.
7. Supporting the prosecution and the final report, the learned
special Government Pleader for Vigilance referred to the detailed
statement of facts submitted by the investigating officer. It was stated
that, crime was registered on the basis of the vigilance enquiry
conducted by VACB, Kollam unit, pursuant to a complaint filed by the
officer in charge of the Director of State Lotteries,
Thiruvananthapuram. Pending the investigation, few of the lottery
agents had filed a complaint before the Kollam East Police alleging that
the lottery agents had entrusted huge amounts with the first accused,
who had assured to give the lotter tickets for the corresponding amount.
Without giving the lottery tickets, he misappropriated a sum of
Rs.81,33,965/-. Crime No.672/2013 under sections 406,,409 and 34 IPC
was registered by the Kollam East Police Station. In the course of
investigation, Vigilance Case No.VC1/2015 was clubbed with Crime
No.672/2013 of the Kollam East Police Station and investigation
continued.
8. It was stated by the investigating officer that during the course
of investigation, the entire registers and records were verified. 37
witnesses were questioned and their statements were recorded. It was
revealed that the second accused was the administrative head of the
district lottery office, Kollam, during the relevant time. He was also the
officer who was bound to sign the cash book and remit the cash in the
bank, through District treasury, Kollam by a chalan. The chalans were
signed by the second accused on every day at the closing of the office.
Cash book was written by the first accused on behalf of the second
accused. Normally, the junior superintendent and assistant district
lottery officer were bound to verify the entries of the first accused in
the cash book . Lastly, it would be placed before the second accused, to
verify each and every entry with the draft subsidiary cash book. The
next day, the cash balance was liable to be remitted in the treasury
through chalan signed by the second accused. During the course of
investigation it was revealed that the first accused received the cash of
sales of lottery tickets at the counter and kept under his custody in
office chest. The chest would be opened and closed only with two
connected cases . The custodian of those keys were the first and the
second accused. Every sales entry and collection were to be entered in
the computer system, which is the subsidiary cash book. The subsidiary
cash book and the main cash book must tally. It was stated that, the
first accused could not have committed any illegal activities, without the
knowledge and conveyance of the second accused. The sales approved
by the cashier would be checked by the second accused. It was alleged
that normally the main cash book was written on the basis of the
subsidiary cash book and after verification by the junior superintendent
and the Assistant Lottery Officer, the cash book would be placed before
the second accused. Investigating agency has collected materials to
show that on the most of the days, the first accused had directed the
producing of the cash book before the second accused, without
producing before the junior superintendent and the assistant Lottery
officer. The second accused signed the cash book in violation of
mandatory procedure, it was alleged. Hence, there are some
indications that the second accused did that fully knowing that it was
not seen by the subordinate officers and fully knowing that it was
improper.
9. In the course of investigation it was revealed that on 9/2/2013
and 11/2/2013, accused 1 and 2 had collected a sum of 8,13,3,965/-
from the lottery agents promising that lottery tickets would be issued
to them. However, he misappropriated the amount. The audit
conducted by the officials of the directors had indicated that
misappropriation of Rs.1,39,96,323/ was committed by both the
accused.
10. A perusal of the statements produced by the prosecution in
support of the allegations indicate that most of the witnesses have given
statements supporting the prosecution case. The above materials
indicate that there was violation of a procedure by the accused and
records were signed by the second accused without the knowledge of
the junior superintendent and the additional district lottery officer. The
materials gathered by prosecution indicate that had the second accused
been vigilant, he could have known that misappropriation was being
conducted by the first accused. This covered a long period and it is
likely that without the knowledge of the second accused this
misappropriation, could not have occurred. Some statements indicate
that the second accused had threatened the subordinate officers who
had opposed the breach of procedure. There are some other materials
which indicate that the second accused was actively privy to falsification
of the records and misappropriation. It also indicates that the amount
collected from the agents were not deposited in the treasury.
11. There is absolutely nothing to indicate that Junior
Superintendent and the Additional District Lottery Officer have
committed any illegal activities. On the other hand, it seems that even
the admission by the first accused indicates misappropriation, and it
was intended to save the second accused from the crime. The allegation
that Vigilance case was improperly clubbed with the crime registered by
the Kollam East Police Station is also without any basis.
12. Having considered the above materials. I find no reason to
interfere in the final report which seems to be based on materials.
Whether the prosecution is able to establish it through the witnesses
and records is a matter of trial. It is too early at this stage to interfere
with the final report in the light of the materials gathered by the
investigating agency. I find no reason to quash Annexure-A1 final
report.
Accordingly, Crl.M.C. is without any merits and is dismissed.
SD/-
SUNIL THOMAS
dpk JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF FINAL REPORT PENDING AS
CC.NO.3/2018 DATED 31.3.2018 ON THE FILE OF
VIGILANCE AND ANTI-CORRUPTION BUREAU
SUBMITTED BEFORE THE ENQUIRY COMMISSIONER,
SPECIAL JUDGE, THIRUVANANTHAPURAM.
ANNEXURE A2 COPY OF THE MEMO DATED 3.2.2013 ISSUED BY
THE PETITIONER TO A1
ANNEXURE A3 COPY OF THE EXPLANATION DATD 3.2.2013
SUBMITTED BY A1 CASHIER
ANNEXURE A4 COPY OF THE REQUEST DATED 7.2.2013
SUBMITTED BY THE PETITIONER BEFORE THE
DIRECTOR OF STATE LOTTERY
ANNEXURE A5 COPY OF THE OFFICE NOTE DATED 8.2.2013
ISSUED BY THE ASSISTANT DISTRICT LOTTERY
OFFICER (CW1)
ANNEXURE A6 COPY OF THE MEMO DATED 8.2.2013 ISSUED BY
THE PETITIONER TO A1
ANNEXURE A7 COPY OF THE REPLY DATED 8.2.2013 SUBMITTED
BY A1
ANNEXURE A8 COPY OF THE RECEIPT OF THE MEMO DATED
08.2.2013 ISSUED BY THE PETITIONER TO A1
ANNEXURE P9 COPY OF THE MEMO DATED 08.2.2013 ISSUED BY
THE PETITIONER TO A1
ANNEXURE A10 COPY OF THE EXPLANATION DATED 08.02.2013
SUBMITTED BYA1
ANNEXURE A11 COPY OF THE MEMO DATED 11.2.2013 ISSUED BY
THE PETITIONER TO A1
ANNEXURE A12 COPY OF THE REPORT SUBMITTED BY THE
PETITIONER BEFORE THE STATE LOTTERY
DIRECTOR
ANNEXURE A13 COPY OF THE REPORT OF INSPECTION DATED
13.02.2013 CONDUCTED AT THE DISTRICT
LOTTERY OFFICE
ANNEXURE A14 COPY OF THE SUSPENSION ORDER DATED
16.02.2013
ANNEXURE A15 COPY OF THE LETTER NO.7/1831/12/DSL DATED
18.02.2013 ISSUED BY THE DIRECTOR,STATE
LOTTERIES
ANNEXURE A16 COPY OF THE STATEMENT DATED 01.03.2017
FILED BY THE RESPONDENT
ANNEXURE A17 COPY OF THE INTERIM ORDER DATED 17.03.2017
IN CRL MC NO 1480/2015
