K.R.Sanjeev Kumar vs Superintendent Of Police
2025 Latest Caselaw 11788 Ker

Kerala High Court

K.R.Sanjeev Kumar vs Superintendent Of Police on 2 December, 2025

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

   TUESDAY, THE 2ND DAY OF DECEMBER 2025 / 11TH AGRAHAYANA, 1947

                        CRL.A NO. 921 OF 2008

        AGAINST THE JUDGMENT DATED 15.05.2008 IN CC NO.14 OF 2005 OF

SPECIAL COURT SPE/CBI-I, ERNAKULAM

APPELLANT/ACCUSED:

            K.R.SANJEEV KUMAR,
            S/O.LATE N.RAMAKRISHNAN NAIR,
            SORTING ASSISTANT,SUB-RECORD OFFICE,
            RAILWAY MAIL SERVICE,CALICUT DIVISION,
            THALASSERY-3,KERALA        (FORMERLY SORTING
            ASSISTANT,RMS SHORANUR).

            BY ADV SRI.SOORAJ T.ELENJICKAL


RESPONDENTS/COMPLAINANT:

    1       SUPERINTENDENT OF POLICE
            CENTRAL BUREAU OF INVESTIGATION, KOCHI.

    2       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA.


            BY ADVS.
            SHRI SREELAL N.WARRIER, SPECIAL PUBLIC PROSECUTOR FOR
            CBI


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2025,
THE COURT ON 02.12.2025 DELIVERED THE FOLLOWING:
                                                             2025:KER:93039
Crl.Appeal No.921/2008               2



                                                                      "C.R"


                       A. BADHARUDEEN, J.
              ================================
                     Crl.Appeal No.921 of 2008-A
            ================================
                Dated this the 2nd day of December, 2025

                              JUDGMENT

Being aggrieved by the conviction and sentence imposed against

the appellant as per judgment dated 15.05.2008 in C.C.No.14/2005 on

the files of the Court of the Special Judge(SPE/CBI)-I, Ernakulam, this

appeal has been filed by the appellant, who is the accused therein.

2. Heard the learned counsel for the appellant/accused as

well as the learned Special Public Prosecutor appearing for the Central

Bureau of Investigation.

3. The prosecution case is that the accused while working

as a Sorting Assistant in the Railway Mail Service (`RMS' for short

hereafter), Shornur during 16.06.1995 to 27.09.2004 dishonestly and

fraudulently misappropriated a total sum of Rs.2,79,500/- by encashing

cheques posted through RMS. The total amount of Rs.2,79,500/- has been 2025:KER:93039

arrived at by the use of 7 cheques and the allegations are as under:

(i) bearer cheque No.143315 for Rs.5,000/- sent by Shri

Rajmal P., an NRI person from Jeddah (KSA) drawn on his account

No.33601 at Canara Bank, Edakkara Branch by ordinary post to his wife

Smt.Abeeda Rajmal, Punnapala House, Vazhikadavu P.O, Malappuram

Dist. and presented the same in the said account of the NRI person and

encashed Rs.15,000/- on 02.04.2003 by forging the signature of the payee

as `Sunil' and altering the cheque Rs.5,000/- (Rupees Five thousand only)

to Rs.15,000/- (Rupees Fifteen thousand only) and withdrawn Rs.15,000/-

and misappropriated it.

(ii) bearer cheque No.060847 for Rs.10,000/- sent by Shri

P.P.Sivadasan, an NRI person from Fujirah (UAE) drawn on his account

No.18797 at Canara Bank, Perinthalmanna Branch by ordinary post to

Smt.Geetha P.Sivadasan, W/o.Shri Sivadasan, Parambil House,

Naduvattam, Edappalam P.O, Palakkad District and presented the same

in the said account of the NRI person and encashed Rs.10,000/- on

02.04.2004 by forging the signature of the payee as `Sunil' and withdrawn

Rs.10,000/- and misappropriated.

2025:KER:93039

(iii) & (iv) bearer cheque No.244018 for Rs.19,500/- and

Cheque No.244019 for Rs.30,000/- sent by Shri K.Sakkir Hussain, an NRI

person from Abu Dhabi drawn on his account No.793 at Federal Bank

Ltd. Kuttipuram Branch by ordinary post to his father K.Kunhahammed @

Kunjappa, S/o.late Mohammed, Kyappalli House, Kolakkad, Kuttipuram,

Palakkad District and presented the same in the said account of the NRI

person and encashed Rs.19,500/- and Rs.30,000/- on 10.03.2004 and

08.03.2004 by forging the signatures as `Abu and Azeez' respectively and

withdrawn Rs.49,500/- and misappropriated it.

(v) bearer cheque No.678367 for Rs.25,000/- and a DD

dated 06.05.2004 for Rs.9,937/- sent by Shri K.T.Abdul Nazar, an NRI

person from Sultanate of Oman drawn on his account No.18975 at the

Perinthalmanna Service Co-operative Bank Ltd., Perinthalmanna by

ordinary post to Smt.K.T.Benazir, W/o.Shri Abdul Nazar, Kunnathodi

House, Ponnian Kurishi P.O, Perinthalmanna, Malappuram District and

presented the same in the said account of the NRI person and encashed

Rs.25,000/- on 22.05.2004 by forging the signature and withdrawn

Rs.25,000/- and misappropriated it.

2025:KER:93039

(v) bearer cheque No.060911 for Rs.50,000/- and a DD

No.3/34548530 dated 15.02.2004 for Rs.50,000/- sent by Shri V.Moideen,

an NRI person from Saudi Arabia drawn on his account No.3083 to his

father Shri V.Said @ Vysyam Said, S/o.Moideen, Paloor P.O,

Pulamanthole, Malappuram District and presented the same in the said

account of the NRI person and encashed Rs.50,000/- on 26.02.2004 by

forging the signature as `Sunil' and remitted Rs.20,000/- in the loan

account of Shri Moideen and misappropriated the balance amount of

Rs.30,000/-.

(vii) bearer cheque No.994522 for Rs.1,50,000/- sent by Shri

Abdul Majeed, an NRI person from London drawn on his account

No.113709 to his brother Shri Mustafa. Perungad House, Erakkara

Marakkara P.O, Malappuram District and presented the same in the said

account of the NRI person and encashed Rs.1,50,000/- on 02.04.2004 by

forging the signature as `Ali Akbar' and withdrawn Rs.1,50,000/- and

misappropriated it and that by the acts detailed above, the accused have

dishonestly and fraudulently misappropriated or otherwise converted for

his own use the said properties entrusted to him as a public servant and 2025:KER:93039

thereby committed the offence punishable under Section 13(2) r/w 13(1)(c)

of the Prevention of Corruption Act, 1988.

4. On getting final report filed before the Special Court, the

learned Special Judge proceeded with trial on completion of the pre trial

formalities. Accordingly, PW1 to PW27 were examined and Exts.P1 to

P65(a) were marked on the side of the prosecution. On the side of the

defense, DW1 was examined and Ext.D1 was marked.

5. On an anxious consideration of the evidence adduced,

the learned Special Judge found that the accused committed offences

punishable under Section 13(1)(c) r/w 13(2) of the Prevention of

Corruption Act, 1988 (`PC Act, 1988' for short hereafter) and under

Sections 409, 419, 465 and 471 of the Indian Penal Code (`IPC' for short)

as well as under Section 52 of the Indian Post Office Act. Accordingly he

was sentenced as under:

"To undergo rigorous imprisonment for a period of three years and a fine of Rs.3 lakhs (Rupes Three lakhs only) and in default of payment of fine to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 13(1)(c) r/w Section 13(2) of the Prevention of Corruption Act.

The accused is further sentenced to undergo Rigorous 2025:KER:93039

Imprisonment for a period of five years and a fine of Rs.10,000/- (Rupees Ten Thousand only) and in default of payment of fine to undergo Rigorous Imprisonment for a further period of six months for the offence punishable under Section 409 of Indian Penal Code. The accused is further sentenced to undergo Rigorous Imprisonment for a period of one year for the offence punishable under Section 419 of Indian Penal Code. The accused is further sentenced to undergo Rigorous Imprisonment for a period five years each and a fine of Rs.10,000/- (Rupees Ten thousand only) each and in default of payment of fine to undergo Rigorous Imprisonment for a further period of six months each for the offences punishable under Sections 467 and 471 of Indian Penal Code. The accused is also sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand only) and in default of payment of fine to undergo Rigorous Imprisonment for a further period of six months for the offence punishable under Section 52 of the Indian Post Office Act."

6. While assailing the correctness of the verdict entered by

the learned Special Judge, it is pointed out by the learned counsel for the

appellant/accused that 8 Sorting Assistants had worked in the RMS during

the relevant period, including the petitioner. As per the prosecution case,

the misappropriation was done by the accused. It is submitted that, in

order to find misappropriation of the said amount by the accused, no

convincing evidence forthcoming. Therefore, the learned Special Judge

entered into conviction and sentence without support of sufficient evidence 2025:KER:93039

adduced by the prosecution. According to him, as regards to encashment

of Exts.P7, P14, P23, P44, P33 and P40, the evidence of PW15 and PW16

was given emphasis by the prosecution, supported by the evidence of PW8

and Ext.P17. According to the learned counsel for the appellant/accused,

the above evidence is quite insufficient to prove the guilt of the accused

and, therefore, the evidence adduced by the prosecution to prove the

offences are not fully free from doubts and the accused would deserve

benefit of doubt.

7. Per contra, the learned Public Prosecutor submitted that

insofar as encashment of Exts.P7, P14, P23, P44, P33, P40 and P44

cheques by the accused are concerned, PW8, PW15 and PW16, the

officials of the bank, to whom before the accused had produced the above

cheques for encashment, given evidence and they categorically identified

the accused as the person who had produced the cheques and encashed the

same. Apart from that, when the misappropriation was noticed by the

RMS Department, they had made an internal enquiry about the person who

had obtained the custody of the cheques and encashed the same, and prior

to investigation itself, PW8, PW15 and PW16 had identified the accused 2025:KER:93039

as the person, who had produced the cheques for encashment when shown

among 5 Sorting Assistants in the RMS. Therefore, the prosecution fully

succeeded in proving the guilt of the accused and no element of doubt

could be gathered to give any benefit of doubt to the accused. The learned

Public Prosecutor also urged that apart from the evidence of PW8, PW15

and PW16, when the specimen signatures and handwriting of the accused

were forwarded, as spoken to by PW27 and DW1, the FSL reports

Exts.P54 and P55 obtained were also in support of the prosecution case.

8. Adverting to the rival submissions, it is necessary to

evaluate the following questions arise for consideration:

(i) Whether the Special Court is right in holding that the

accused committed offence under Section 13(1)(c) read with 13(2) of the

P.C Act, 1988?

(ii) Whether the Special Court is right in holding that the

accused committed offence under Section 409 of the IPC?

(iii) Whether the Special Court is right in holding that the

accused committed offence under Section 419 of the IPC?

(iv) Whether the Special Court is right in holding that the 2025:KER:93039

accused committed offence under Section 467 of the IPC?

(v) Whether the Special Court is right in holding that the

accused committed offence under Section 471 of the IPC?

(vi) Whether the Special Court is right in holding that the

accused committed offence under Section 52 of the Indian Post Office

Act?

(vii) Whether the verdict under challenge would require

interference?

          (viii)       The order to be passed?

Points (i) to (viii)

9. Here the prosecution case is that the accused, while

working as Sorting Assistant, had obtained custody of Exts.P7, P14, P23,

P44, P33 and P40 cheques and he had produced the same before the

concerned banks, then encashed the same and had misappropriated the

total sum covered by the above cheques coming to the tune of

Rs.2,79,500/-. The Special Court found that the evidence of PW4, PW19,

PW24 and PW25 when read along with the evidence of PW8, PW15,

PW16, PW26 and PW27 and supported by the expert opinion, established 2025:KER:93039

the entrustment of the cheques at the hands of the accused and encashment

of the same by the accused. Thus, on finding misappropriation, the

accused was convicted and sentenced for the said offences.

10. The contention raised by the accused before the Special

Court as well as this Court, and as per the statement of the accused filed

before the Special Court under Section 313 of Cr.P.C, is that he is innocent

and he did not know to read Malayalam. Further, no documents were

entrusted to him as a public servant and he did not take away any postal

articles and misappropriated the same. He also denied presentation and

encashment of the cheques alleged by the prosecution. This case was

emanated when Ext.P3 complaint was filed by Ms.Abida Rajmal stating

that the cheques issued through RMS by her husband Sri Rajmal were not

received by her. PW2 conducted an enquiry as regards to the allegation in

Ext.P3 and filed Ext.P2 report finding that the accused had taken away

several covers containing the cheques. Acting on Ext.P2 report, PW1,

who was the Postal Division Superintendent, lodged Ext.P1 complaint to

the Central Bureau of Investigation (`CBI' for short) and the CBI

registered crime and investigated the matter. PW3 examined in this case is 2025:KER:93039

Rajmal. He deposed that he had sent cheque for Rs.5,000/- to his wife

along with a letter and Rs.10,000/- to his father in law. On receipt of

cheque for Rs.10,000/-, his father in law had gone to the bank for its

encashment and the said cheque was dishonoured for want of funds. The

wife did not get the cheque. On enquiry it was found that the cheque

issued in the name of his wife to the tune of Rs.5,000/- was manipulated

by showing Rs.15,000/- and the amount was encashed. Anyhow, PW3

was not fully cross-examined, and the Special Court did not give much

emphasis to the evidence of PW3 for want of cross-examination.

11. The prosecution case centres on the allegation that

Exts.P7, P14, P23, P44, P33 and P40 cheques were not encashed by the

persons in whose names they were issued. Similarly, the postal articles in

which the cheques were sent were also not received by the concerned

persons.

12. Ext.P7 is the cheque for Rs.15,000/- issued to the father-

in-law of PW3, and it was encashed after fabricating the amount as

Rs.15,000/- instead of Rs.5,000/-. In this regard, PW8, the bank manager,

had deposed that the cheque was encashed and he had noted spelling 2025:KER:93039

mistake in the cheque. Therefore, he had noted the address of the person,

who brought the cheque for collection and had recorded on the reverse side

of Ext.P7. PW11, who is the wife of PW3, had given evidence that she did

not receive Ext.P7 cheque or she did not encash the same.

13. Ext.P14 is cheque for Rs.10,000/- issued by the husband

of PW9 through RMS and according to PW9 she also did not receive the

cheque but the cheque was encashed and money was collected by some

other persons. It was PW18, who issued the said cheque to PW9, and

PW18 also supported the version of PW9. Ext.P14 cheque was encashed

by writing the name `Sunil' on the reverse side of the cheque. Anyhow the

money was lost to PW9. Ext.P33 is the cheque for Rs.50,000/- issued by

the son of PW14 to him. PW14 deposed that he did not receive the cheque

and the same was lost during transit along with the letter accompanied by

the same. As regards to Ext.P33, PW15, the staff of the bank, had

identified the person, who brought Ext.P33 cheque for collection.

14. Ext.P23 cheque was for a sum of Rs.19,500/-. Ext.P24

cheque was for a sum of Rs.30,000/-. Both these cheques also were not

received by the addressee. These cheques also were misappropriated by 2025:KER:93039

somebody during transit.

15. Ext.P44 is a cheque for Rs.25,000/-. It was accompanied

by a DD or Rs.9,937/-. PW12 deposed that her husband was working at

Dubai. Her husband had sent a cover containing a DD and the cheque.

The cover was entrusted to her husband's friend Ronald. Ronald after

reaching Pondicherry, had sent the cover to PW12. But PW12 did not

receive the cover. On enquiry it was found that the amount was encashed

by someone. This cover was lost during transit. PW20 had entrusted

Ronald the cover containing Ext.P44 cheque and another DD for

Rs.9,937/- to be sent it to his wife. Ronald had sent the cover by ordinary

post from Pondicherry. But PW12 did not receive the cover. That means,

Ext.P44 cheque was also lost during transit.

16. Ext.P40 is a cheque for a sum of Rs.1,50,000/-. PW13

had deposed that the brother of her husband was working at London. He

had sent a cheque for Rs.1,50,000/- to her husband. But her husband did

not get the cheque. During that her husband was working at London. On

enquiry it was found that the cheque was encashed by some other person.

So it could be seen from Ext.P40 and the deposition of PW13 that the 2025:KER:93039

cheque for Rs.1,50,000/- was lost during transit. Thus the available

evidence before the court would show that Exts.P7, P14, P23, P24, P44,

P33 and P40 were encashed by the accused or some other person under the

instruction of the accused. The person who had stolen the cheque could be

determined by identifying the person who had encashed the cheque.

17. PW8 examined in this case is the Bank Officer, Canara

Bank, Edakkara Branch. According to him, he dealt with the job of

encashment of cheques from 2003 onwards. Ext.P5, an account opening

form of Rajmal, was identified by PW8. He had identified the specimen

signatures of Rajmal in Ext.P6 specimen card. According to him, Ext.P5

account cheque Nos.143301 to 143320 were issued as one book and

Ext.P7 is one among the cheques. By using Ext.P7 cheque, Rs.15,000/-

was withdrawn from the account of Rajmal as per Ext.P17 statement of

account, and the 'cash paid' seal was affixed on Ext.P7. According to

him, in Ext.P7 there was spelling mistake in the amount written in words

and he had passed the cheque. He deposed further that he had noticed the

above spelling mistake while passing the cheque and he had made

discussion with the person, who brought the cheque. Then the person had 2025:KER:93039

informed that the person was the friend of the account holder who was

requested to pass the cheque. Soon he asked about the details of the friend

and the accused given address as `Sunil, S/o.Muraleedharan, Sunil Nivas,

Near Govt. Hospital, Nilambur' and he had noted the same since there was

spelling mistake in the cheque. He had identified the signature of the

person who obtained the cash as per Ext.P7 marked as `Q'. According to

him, the person was with him for an hour and he could identify him and he

had identified the accused at the dock as the person who had come for

encashment of Ext.P7 cheque. He also stated reasons for identifying the

accused person stating that he was clean shaved, handsome and well

dressed. Later a person from the house of the account holder had reached

the bank and enquired about the cheque for Rs.5,000/- sent by the husband

of the account holder alleging that the said cheque was not received. Then

he had enquired about the cheque number and found that the cheque

enquired was Ext.P7 encashed for Rs.15,000/- and accordingly he had

handed over a photocopy of Ext.P7 and later produced the document

before the CBI on 17.01.2005 and he obtained a receipt Ext.P19 for

submitting Ext.P18 before the CBI. When he had enquired about the 2025:KER:93039

address given by the accused as that of Sunil, it was revealed that no such

addressee.

18. While finding fault with the evidence of PW8, the

learned counsel for the accused submitted that the identification of the

accused by PW8 was dock identification without conducting a Test

Identification Parade (`TIP' for short hereafter) and, therefore, the

identification is wrong.

19. Before addressing this contention, it is relevant to

address the versions of PW15 and PW16. PW15 examined in this case

was a staff of Service Co-operative Bank, Pulamanthole. PW15 deposed

that while working in the above bank as Senior Clerk during 2004, as per

Ext.P13 an account in the name of Moideen was opened and he had

identified the signature of Moideen in Ext.P13 and account number as

3083. Ext.P31 is the statement of account pertaining to the said account

from 24.10.2002 to 30.09.2004. His evidence further is that as per

Ext.P32, cheque Nos.60911-60920 were issued in the name of Moideen.

Ext.P33 is one among the cheques so issued. On 26.02.2004, the amount

shown in the cheque was encashed and `cash paid' seal was affixed and he 2025:KER:93039

was present during that transaction. According to him, the person, who

had encashed the cheque as per Ext.P33 after withdrawing the amount, had

requested to repay Rs.20,000/- to the loan account of Moideen. When

PW15 had enquired about the address of Moideen, he could not give the

same. He also stated that he did not know what was the amount to be

remitted towards loan, though he said that Moideen was his friend.

According to him, the loan amount was remitted as per Ext.P34 receipt.

He had noticed the person who so arrived at the bank as he found that he

was not a native of that place and his style of dressing and speech was

found to be different and according to PW15, the person so approached

him was having a north Indian look and he was well dressed. PW15 had

also spoken about a rope tied on the hand of that person and thereafter one

Muhamedkutty from Postal Department had reached the bank and asked

whether he could identify the person, who encashed Ext.P33 cheque and

he had answered in the affirmative and as requested by Muhamedkutty he

followed him to the railway station, Shornur along with his Secretary

Manoharan and from there PW15 and Manoharan were brought to the

RMS office and Manoharan had waited outside. PW15 along with 2025:KER:93039

Muhamedkutty had entered the RMS room at about 5.30 p.m and there

were more than 5 persons engaged in their work. Among them he had

identified the accused at the first sight and pointed out him. According to

him, the person who had gone to the bank was the accused in the dock,

although he appeared slightly different in his hair style and he had a

moustache when he was before the court.

20. PW16 examined in this case is the Manoharan referred

by PW17 and according to him he had produced Exts.P36 and P37 and he

also deposed in support of the evidence of PW15.

21. The identification of the accused at the dock by PW8 and

PW15 is concerned, challenge has been raised pointing out that the

identification was dock identification though PW8 and PW15 are strangers

as far as the accused is concerned. Non conduct of Test Identification

Parade has been pointed out to disbelieve the identification of the accused

by PW8 and PW15. On perusal of the evidence given by PW8, the same

would show that PW8 had occasion to spend an hour time with the

accused and they had negotiations as regards to spelling mistake in the

cheque as well as the address of the person shown as the payee thereof.

2025:KER:93039

Based on which, PW8 had spoken about the same signs as to identify the

accused, as already discussed. If such a person when identifies the

accused person at the dock, the said identification could not be considered

as dock identification. It is the settled law that if the accused is a total

stranger to the witness, it is better to identify the accused by conducting

TIP and no such procedures are required if the witness is familiar with the

accused. Similarly, even if the accused is a stranger to the witness, when

both have sufficient time to interact so as to imprint the face of the accused

in the witness's memory for later identification, such identification is not

the same as a mere dock identification and it is an identification based on

the impression formed in the mind of the witness during their interaction.

Therefore, the identification done by PW8 and PW19 could not be disbelieved.

Apart from the other evidence, PW15 and PW16 had given categoric evidence

identifying the accused as the person who produced Ext.P33 cheque in the

name of Moideen and paid the loan amount.

22. Apart from this evidence, showing encashment of

Exts.P7, P14, P23, P44, P33 and P40 cheques, which according to the

persons to whom the same were sent, did not receive. The handwriting 2025:KER:93039

and signatures in the above cheques were marked as `Q1' to `Q20' in the

presence of PW27 and DW1 and the standard signatures S1 to S57 of the

accused were obtained for comparison of the same. Among `Q' series,

disputed handwriting and signatures Q1 and Q2 are in Ext.P7, Q4 is in

Ext.P14, Q5 to Q8 are in Ext.P23, Q10 is in Ext.P24, Q13-15 are in

Ext.P44, Q16 is in Ext.P43, Q17 and Q18 are in Ext.P40, Q18 and Q20 are

in Ext.P53 and Ext.P54. When the questioned signatures and handwritings

were forwarded along with the specimen signatures collected as that of the

accused, the expert examined as PW25 categorically opined that the same

are in the handwriting of the accused.

23. DW1 was examined on the side of the accused to prove

that the questioned handwritings and signatures were shown to the accused

and he was requested to put the same as specimen signatures. DW1 was

examined on the side of the accused to prove that the questioned

handwritings and signatures were shown to the accused, and he was

requested to provide the same as specimen signatures. In fact, the

evidence of DW1 is of no significance since the procedure adopted by the

investigating officer to get specimen handwritings and signatures to 2025:KER:93039

compare the same with that of Q1 to Q20, is perfectly in order. Thus apart

from the oral evidence of the witnesses and the identification of the

accused as the person who brought some of the cheques, the expert

opinion would corroborate the fact that the cheques were produced before

the bank by the accused after making writings and putting signatures

thereon and he had encashed the same. Thus he had got entrustment of the

cheques while working as Sorting Assistant and misappropriated the

amounts covered by the cheques while working as a public servant.

24. In this connection, it is necessary to refer the ingredients

to attract offence under Section 409 of IPC. Section 409 of IPC is

extracted as hereunder:

"409. Criminal breach of trust by public servant, or by banker, merchant or agent: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

25. Section 409 is pari materia to Section 316(5) of the

Bharatiya Nyaya Sanhita, 2023 (`BNS' for short) and Section 316(5) of 2025:KER:93039

BNS reads as under:

"316: Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.""

26. Analysing the ingredients to attract offence under

Section 409 of IPC, its applicability is as held by the Apex Court in

[(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v.

State of Andhra Pradesh, as pointed out by the learned counsel for the

petitioner.

27. In Sadhupati Nageswara Rao v. State of Andhra

Pradesh's case (supra), the Apex Court, while upholding the conviction

held that, where the appellant, an agent entrusted with the distribution of

the rice under the "Food for Work Scheme" to the workers on production

of coupons, was charged with misappropriation of 67.65 quintals of rice,

the evidence proves that there was entrustment of property to the accused

28. In order to sustain a conviction under section 409 of the 2025:KER:93039

Indian Penal Code, 1860, two ingredients are to be proved; namely, (i) the

accused, a public servant or a banker or agent was entrusted with the

property of which he is duty bound to account for; and (ii) the accused has

committed criminal breach of trust. What amounts to criminal breach of

trust is provided under Section 405 IPC. The basic requirements to bring

home the accusation under Section 405 IPC are to prove conjointly; (i)

entrustment and (ii) whether the accused was actuated by a dishonest

intention or not, misappropriated it or converted it to his own use or to the

detriment of the persons who entrusted it, as held by the Apex Court in the

decision reported in [(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati

Nageswara Ra v. State of Andhra Pradesh.

29. The gravamen of the offence under Section 409 of IPC is

dishonest intention on the part of the accused but to establish the dishonest

intention, it is not necessary that the prosecution should establish an

intention to retain permanently, the property misappropriated. An

intention, wrongfully to deprive the owner of the use of the property for a

time and to secure the use of that property for his own benefit for a time

would be sufficient. Section 409 of IPC cannot be construed as implying 2025:KER:93039

that any head of an office, who is negligent in seeing that the rules about

remitting money to the treasury are observed, is ipso facto, guilty of

criminal breach of trust; but something more than that is required to bring

home the dishonest intention.

30. Thus on an evaluation of evidence, it could be gathered

that the accused had misappropriated the amount he got entrusted as a

public servant after forging and using the same as genuine for the purpose

of cheating the persons to whom the cheques were issued and the Postal

Department. Therefore, the Special Court was right in holding that the

accused committed the offences punishable under Sections 13(1)(c) r/w

13(2) of the PC Act, 1988 as well as Sections 409, 419, 465 and 471 of the

IPC as well as Section 52 of the Indian Post Act. Hence, the conviction

entered by the Special Court doesn't call for any interference.

31. Coming to the sentence, having considered the gravity of

the offences, the sentence imposed by the Special Court is only to be

justified. Therefore, the sentence also doesn't require any interference.

Hence this Crl.Appeal fails and is accordingly dismissed.

Since the order suspending the sentence and granting bail to the 2025:KER:93039

accused/appellant was already cancelled, the accused is directed to

surrender before the Special Court to undergo the sentence, failing which

the Special Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the

Court of the Special Judge(SPE/CBI)-I, Ernakulam, for compliance and

further steps.

Sd/-

A. BADHARUDEEN, JUDGE

rtr/