T.Augustine vs Vigilance And Anti-Corruption ...
2023 Latest Caselaw 7223 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                      CRL.A NO. 795 OF 2010
AGAINST THE JUDGMENT IN CC 40/2003 OF ENQUIRY COMMISIONER &
                     SPECIAL JUDGE,KOZHIKODE
APPELLANT/ACCUSED:

         T.AUGUSTINE
   *1    PALLIMALAKKUNNU HOUSE,H.NO.12164/99,KOTTULI,,
         KOZHIKODE.(*EXPIRED)
    2    OMANA IVY, W/O. AUGUSTINE, AGED 53 YEARS,
         PALLIMALA KUNNU HOUSE, HOUSE NO.12164/99,KOTTOOLI,
         KOZHIKODE. [IMPLEADED AS SUPPLEMENTAL APPELLANT AS
         PER ORDER DATED 14/03/2023 IN CRL.M.A. 2/2023.]
         BY ADV SRI.T.G.RAJENDRAN


RESPONDENTS/COMPLAINANT & STATE:

    1    VIGILANCE AND ANTI-CORRUPTION BUREAU AND
         NORTHERN VILLAGE,KOZHIKODE.
    2    STATE OF KERALA REPRESENTED BY PUBLIC
         PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
OTHER PRESENT:

         SMT S REKHA SR PP, SRI A RAJESH SPL PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
14.06.2023, THE COURT ON 27.06.2023 DELIVERED THE FOLLOWING:
 Crl.Appeal No.795/2010

                                -:2:-




                         J U D G M E N T

Dated this the 27th day of June, 2023

This appeal has been filed by the accused in CC No.40/2003

on the files of the Enquiry Commissioner and Special Judge,

Kozhikode (for short, 'the court below') challenging the judgment

dated 31st March, 2010 convicting and sentencing him under

section 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption

Act, 1988 (for short, the PC Act) and Sections 409, 467 r/w 471

and 477A of the Indian Penal Code (IPC).

2. The accused was working as Senior Assistant holding

charge of Disbursement Clerk in Kerala State Road Transport

Corporation (KSRTC), Kozhikode Unit during 1998-1999. The

prosecution case in short is that the accused while working so

during the period from 10/8/1998 to 11/8/1999 fraudulently and

dishonestly misappropriated an amount of `1,61,229/- by forging

the signatures of various staffs and pensioners and by fabricating

the bills and office records.

3. After trial, the court below found the accused guilty

and convicted and sentenced him to undergo rigorous Crl.Appeal No.795/2010

imprisonment for two years each and to pay a total fine of

`1,62,000/-, in default to suffer rigorous imprisonment for six

months for the offences under Section 13(2) r/w Section 13(1)(c)

and (d) of the PC Act, to undergo rigorous imprisonment for 1

year, to pay a fine of `1,000/-, in default to suffer rigorous

imprisonment for three months for the offences under Section

409, to undergo rigorous imprisonment for 1 year each, to pay a

fine of `1,000/- each, in default to suffer rigorous imprisonment

for three months each for the offences under Section 471 r/w 467

and to undergo rigorous imprisonment for 1 year for the offence

under Section 477A of the IPC. Challenging the said conviction

and sentence, the accused preferred this appeal. During the

pendency of the appeal, the accused died. His wife has been

impleaded as the supplemental appellant.

4. I have heard Sri.T.G.Rajendran, the learned counsel for

the appellant and Sri.Rajesh, the learned Special Public

Prosecutor for VACB.

5. The learned counsel for the appellant impeached the

finding of the court below on appreciation of evidence and the

resultant finding as to the guilt. The learned counsel submitted Crl.Appeal No.795/2010

that the prosecution miserably failed to prove the entrustment of

money with the accused alleged to have been misappropriated.

The learned counsel further submitted that the prosecution failed

to prove the disputed signatures and handwritings by scientific

evidence. The counsel also submitted that the evidence of the

prosecution witnesses are highly contradictory. On the other

hand, the learned Special Public Prosecutor for VACB supported

the findings and verdict of the court below and submitted that

the prosecution has succeeded in proving the case beyond

reasonable doubt.

6. The oral evidence of PWs 13, 14, 16, 17, 18 and 20

coupled with Ext.P53, the service book, and Ext.P55, the transfer

and posting order of the accused, would prove that he was

posted as Senior Assistant holding the charge of Cash

Disbursement Clerk of KSRTC, Kozhikode depot during the period

from 10/8/1998 to 11/8/1999. The accused has also not disputed

this aspect. According to the prosecution, the accused while

working in the above capacity misappropriated a sum of

`1,61,229/- during the above period by forging the signature of

various staffs and pensioners and by fabricating the bills and Crl.Appeal No.795/2010

office records. On the other hand, the defence version is that the

accused was a member of K.S.R.T.E.A under C.I.T.U and

subsequently due to some discord, he resigned from that union

and joined in K.S.R.T.E.U under A.I.T.U.C and due to the political

vengeance, PW14 as well as others being the members of C.I.T.U

falsely foisted the case against him.

7. The prosecution mainly relied on the evidence of Pws 1

to 6, 8 to 14, 16, 17, 19, 20, 22 and 23 to prove its case and to fix

the culpability on the accused. PWs 1 to 6 and 8 to 12 are either

employees, pensioners, or legal heirs of the employees at KSRTC.

Their evidence would show that when they went to KSRTC Office

at Kozhikode depot, to draw their salary or pension, to their

surprise, they came to know that it was already drawn and

received by somebody by forging their signatures in the bills. The

documents such as Exts. P2, P4, P6, P8, P10, P13, P14, P24, P25,

P26 and P28 would substantiate their version that their salary or

pension were drawn. But their evidence would prove that it was

not received by them.

8. PW2 is one Prabhakaran who retired from KSRTC,

Kozhikode depot as a conductor on 31/5/2001. He deposed that Crl.Appeal No.795/2010

when he went to the office to collect his salary arrears due to him

for the period from 1988-1997, he realised that his salary arrears

of `41,926/- was drawn by somebody by forging his signature in

the bill. Immediately he lodged Ext.P3 complaint. He denied his

signature in Ext.P4 series arrear pay bill. PW13 was the Senior

Assistant who worked at KSRTC, Kozhikode depot since

21/6/1999. He was holding the charge of Accountant since

4/7/1999. He deposed that during the said period, the accused

was the Cash Disbursement Clerk. He further deposed that he

used to entrust the money with the accused to disburse salary

and pension. He specifically deposed that on 13/7/1999, he

entrusted salary arrears of `41,926/- of PW2 with the accused.

Ext.P25(a) would prove this fact. Ext.P29 daily disbursement

register from 3/2/1999 to 13/7/1999 was marked through him. In

page no.49 of Ext.P29, the accused has entered that `41,926/-

was paid to PW2. The said page was separately marked as

Ext.P29(a). The handwriting in the said page has been identified

by PW13 as that of the accused.

9. PW14 was the Audit Superintendent of the KSRTC

depot, Kozhikode during the above said period. He deposed that Crl.Appeal No.795/2010

he conducted inspection on 11/8/1999 in the Kozhikode depot of

KSRTC in connection with the irregularity in the said office. He

further deposed that on perusal of Ext.P29 daily disbursement

register from 3/2/1999 to 13/7/1999, `41,926/- was shown to be

disbursed. He also identified the handwriting of the accused in

Ext.P29 which has been separately marked as Ext.P29(a). PW17

was the Cash Section Superintendent at KSRTC Depot, Kozhikode

during the period from 1/7/1998 to 3/8/1999. He also deposed

that as per Ext.P29(a), `41,926/- was disbursed. He identified the

handwriting of the accused in Ext.P29(a).

10. PW1 was the LD Clerk at KSRTC Office. She took

voluntary retirement on 30/11/1994. She deposed that on

11/8/1999, she went to Kozhikode Office of KSRTC to collect her

pension. She was told that somebody drew and received her

pension amount. Immediately, she lodged Ext.P1 complaint. She

denied the signature in the voucher acknowledging the receipt of

the money. PW14 deposed that, on 11/8/1999, he went to the

KSRTC depot at Kozhikode to enquire about the irregularities

therein and at that time PW1 came to the office to draw pension

and on verification of the records, it was found that pension Crl.Appeal No.795/2010

amount was already paid. On further verification of the records

especially Ext.P29 disbursement register, he could find that

pension amount of `5,767/- was recorded as paid. He identified

the said handwriting as that of the accused. It is separately

marked as Ext.P29(b).

11. The husband of PW8 viz. T.Valsan was an employee at

KSRTC. He retired in 1985 and died in 1991. He was working in

Military Service prior to his service at KSRTC. She deposed that

family pension was due from KSRTC from August 1991 to March

1999 and she went to the Kozhikode Office of KSRTC to enquire

about the same. Her husband was entitled for pension from

military as well. Since the pension in the military service was

more than the pension at the KSRTC, she decided to opt pension

from military service. However, later she found that her total

pension amount of `39,592/- due from KSRTC was drawn by

somebody else. The evidence of PWs 14, 15, 16, 17 and 20

would clearly show that the said pension amount of `39,592/- was

encashed by somebody else. Their evidence would further show

that in the records pertaining to the disbursement of the said

amount such as Exts. P8, P13, P25(c), P25(d), P29(a), P29(b), Crl.Appeal No.795/2010

P29(c), P29(d) and P30, the handwriting is that of the accused.

12. The evidence discussed above would clearly show that

during the relevant period, the accused was the Cash

Disbursement Clerk in KSRTC, Kozhikode depot. The evidence of

PW13 would show that he entrusted the cash with the accused

for disbursement. The evidence discussed above would further

show that the pension amount of PWs1, 2 and 8 were not

received by them, but drawn by somebody else. PWs 13, 14, 15,

16, 17 and 20 are familiar with the handwriting of the accused.

They deposed that in all the documents pertaining to the

disbursement of those amounts, the handwriting is that of the

accused. To attract the offence of criminal breach of trust, the

prosecution must prove that there was entrustment of property

with the accused, and he had dishonestly misappropriated the

same for his personal use. Once the entrustment is established

by the prosecution, the burden shifts to the accused to account

for the property entrusted. It is settled that if the entrustment is

proved and the explanation given by the accused is not

satisfactory, then it can be presumed that the accused has

committed the offence of criminal breach of trust and Crl.Appeal No.795/2010

misappropriation. The modus operandi of the accused, how he

committed the misappropriation etc. need not be proved by the

prosecution. The fraudulent intention of the accused can be

inferred from the attending circumstances. The same ingredients

of criminal breach of trust and misappropriation have to be

proved by the prosecution for establishing the offence under

section 13(1)(c) of the PC Act as well. [See Jaikrishnadas

Manohardas Desai and Another v. State of Bombay; AIR 1960 SC

880, Raghavan K v. State of Kerala; 2012 KHC 420 and

Vijayakumar v. State of Kerala; 2016 KHC 635]. In T.Retnadas v.

State of Kerala (1999 KHC 2074), this court held that once the

entrustment of amount with the accused is proved, unless the

accused establishes by preponderance of probability that he has

discharged his duty to disburse the said amount to beneficiary,

he will be liable for misappropriation of that amount and he can

be convicted for the offence under section 409 of IPC and section

5(1)(c) of the PC Act, 1947.

13. As stated already, the entrustment of the amount with

the accused has been proved. The beneficiaries deposed that

they have not received it. The accused has failed to prove at Crl.Appeal No.795/2010

least by preponderance of probability that he disbursed the

amount to the beneficiaries, i.e., PWs 1, 2 and 8. Then, the only

conclusion possible is that the accused has misappropriated the

money. It is not in dispute that the accused was a public servant

during the relevant period. He misusing his official position as

public servant misappropriated the amount entrusted with him.

Thus, offence under section 13(2) r/w 13(1)(c) and (d) of the PC

Act as well as under section 409 of IPC stands clearly proved.

14. The evidence on record would prove that the salary

arrear bill prepared in favour of PW2 for `41,926/- was altered to

make it tally with the amount in the bill originally prepared. The

handwriting in the last bill was found different with that of other

sheets. The signature of the Bill Superintendent, Audit

Superintendent, District Transport Officer and the Bill Drawing

Clerk and the payee's receipt in the bill are also found to be

forged. The arrear bill of PW2 was corrected after deleting some

pages from the original bill and added some amount in the last

portion as well as the last page and corrected the total amount as

`39,592/- tallying with the family pension arrears amount of PW8.

PWs 13, 14, 15, 16, 17 and 20 identified the handwriting of the Crl.Appeal No.795/2010

accused. From their evidence, who were familiar with the

handwriting and signature of the accused, it is proved that the

correction in the amount as well as the documents were made by

the accused himself. Thus, the offence under sections 467, 471

and 477A of IPC also stands proved. The learned counsel for the

petitioner vehemently argued that the disputed handwriting and

signatures were not sent for scientific examination and hence it

cannot be said that offence of forgery stands proved. It is settled

that if there is sufficient evidence to show that disputed

handwriting and signature were forged by the accused, then

failure to send the disputed signature and writing to handwriting

expert for expert opinion is not fatal. [see T.Retnadas (supra)].

15. The court below has appreciated the evidence on

record in the correct perspective and rightly found that the

prosecution has succeeded in proving beyond reasonable doubt

that the accused has committed the offence under Section 13(2)

r/w 13(1)(c) and (d) of the PC Act and Sections 409, 467 r/w 471

and 477A of the IPC. On reappreciation of evidence, I find no

reason to interfere with the said findings of the court below.

16. What remains is the sentence. The court below Crl.Appeal No.795/2010

convicted the accused to undergo rigorous imprisonment for two

years each, to pay a total fine of `1,62,000/-, in default to suffer

rigorous imprisonment for six months for the offences under

Section 13(2) r/w Section 13(1)(c) and (d) of the Prevention of

Corruption Act, to undergo rigorous imprisonment for 1 year, to

pay a fine of `1,000/-, in default to suffer rigorous imprisonment

for three months for the offences under Section 409, to undergo

rigorous imprisonment for 1 year each, to pay a fine of `1,000/-

each, in default to suffer rigorous imprisonment for three months

each for the offences under Section 471 r/w 467 and to undergo

rigorous imprisonment for 1 year for the offence under Section

477A of the IPC. Considering the entire facts and circumstances

of the case, I am of the view that the sentence imposed is

reasonable. The supplemental appellant shall deposit the fine

amount at the court below within two months failing which

appropriate legal action will be initiated to realise the fine

amount.

The appeal fails and it is accordingly dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp Crl.Appeal No.795/2010

APPENDIX OF CRL.A 795/2010

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE DEATH CERTIFICATE OF THE APPELLANT