(d) r/w 13 (2) of P.C Act.
(d) r/w 13 (2) of P.C Act.
d) Accused is sentenced to undergo Simple
Imprisonment for 2 years (two years) and to pay
fine of Rs.5,000/- (Rupees Five Thousand) and in
default of payment of fine to undergo Simple
Imprisonment for 3 (three) months for the offence
punishable u/s 13 (1) (c) r/w 13 (2) of P.C Act.
e) Accused is sentenced to undergo Simple
Imprisonment for a period of 2 years (two years)
and to pay fine of Rs.5,000/-(Rupees Five
Thousand) and in default of payment of fine to
undergo Simple Imprisonment for a period of 3
(three) months for the offence punishable u/s 13 (1)
(d) r/w 13 (2) of P.C Act.
Common direction applicable in all the
above 3 cases.
f) The sentences shall run concurrently
g) The sentence in the 3 cases (CC.20/16, 21/16 and
23/16) shall run concurrently as contemplated
CRL.A.NOS.1225, 1227
& 1228 OF 2017 10 2025:KER:93614
u/s.427 CrPC. It is made clear that default sentence
shall not be affected by this direction.
h) Set off is allowed as contemplated u/s.428 CrPC.
i) The bail bonds executed by the accused in all the 4
cases stands cancelled.
7. The learned counsel for the appellant argued
that the evidence relied upon by the prosecution to prove
the guilt of the accused in all the three cases is insufficient
to prove the allegations.
8. But, the learned Public Prosecutor opposed this
contention, specifically pointing out the guilt of the accused
based on the evidence discussed with reference to the
findings in the judgment.
9. In view of the above, the points that arise for
consideration are:
(i) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(c) r/w Section 13(2)
CRL.A.NOS.1225, 1227
& 1228 OF 2017 11 2025:KER:93614
of the PC Act, 1988 in C.C.No.20/2016?
(ii) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(d) r/w Section 13(2)
of the PC Act, 1988 in C.C.No.20/2016?
(iii) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(c) r/w Section 13(2)
of the PC Act, 1988 in C.C.No.21/2016?
(iv) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(d) r/w Section 13(2)
of the PC Act, 1988 in C.C.No.21/2016?
(v) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(c) r/w Section
13(2) of the PC Act, 1988 in C.C.No.23/2016?
CRL.A.NOS.1225, 1227
& 1228 OF 2017 12 2025:KER:93614
(vi) Whether the Special Court was justified in
holding that the accused committed offence
punishable under Section 13(1)(d) r/w Section
13(2) of the PC Act, 1988 in C.C.No.23/2016?
(vii) Whether the verdict would require interference?
(viii) The order to be passed?
10. In this matter, Ext.P2 is the proceedings of the
Director of Public Instructions, Thiruvananthapuram,
dated 01.02.2000 proved through PW1, the then Junior
Superintendent in the office of the Deputy Director,
Education (DDE), Kasaragod. Ext.P1 along with the
evidence of PW1 would show that Ext.P2 proceedings was
issued for the release of funds for providing additional
facilities and drinking water facilities in Upper Primary
Schools and Lower Primary Schools. Further, as per Ext.P2
proceedings, funds also released to provide toilet facilities
for girls in Upper Primary Schools. As per Ext.P1 seizure
CRL.A.NOS.1225, 1227
& 1228 OF 2017 13 2025:KER:93614
mahazar prepared by PW15, Exts.P2 to P13 documents
produced by PW1 before PW15, were seized. Ext.P3 is a
letter dated 28.06.2000 of Assistant Educational Officer,
(AEO), Kasaragod addressed to the Deputy Director of
Education, (DDE) to furnish the list of schools having no
facilities for drinking water, toilet etc., in the Sub District,
Kasaragod. Ext.P4 is the proceedings of the DDE dated
08.08.2000, according sanction to utilize the funds meant
for providing additional facilities and drinking water
facilities in U.P. and L.P. Schools, and toilet facilities for
girls in U.P. Schools, along with the list of selected schools
including G.F.U.P. School, Kizhur, as per which ₹20,000
was sanctioned to G.F.U.P. School for improving toilet
facilities for girls.
11. As deposed by PW1, Ext.P5 is the counter foil of
the Treasury Savings Bank Cheque Book containing cheque
leaves bearing Nos.195201 to 195250 maintained in the
CRL.A.NOS.1225, 1227
& 1228 OF 2017 14 2025:KER:93614
office of the DDE, Kasaragod. Ext.P5(a) is the counter foil
of the cheque bearing No.195206 issued for ₹20,000 to the
accused, who was the then Head Master of G.F.U.P. School,
Kizhur on 29.11.2000. Ext.P6 is the Treasury Savings Bank
Pass Book issued from Sub Treasury Office, Kasaragod to
DDE, Kasaragod and Ext.P7 is the Treasury Savings Bank
Pass Book issued by the Sub Treasury Officer, Kasaragod, to
DDE, Kasaragod. Ext.P7(a) is the folio No.383 in Ext.P7
containing the entry regarding the withdrawal of ₹20,000
through Ext.P5 (a) cheque on 02.12.2000. Ext.P8 is the
"Allotment of Funds cum Cheque issue Register"
maintained in the office of DDE during the period from
01.04.2000 to 26.07.2002. Ext.P8(a) is the page numbers 4
& 5, in this register containing the entry regarding the
receipt of Ext.P5(a) cheque for ₹20,000 by the accused on
29.11.2000 including his signature. Ext.P9 is the complaint
filed by the then PTA President, Abdul Razak (PW7), before
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& 1228 OF 2017 15 2025:KER:93614
DDE, Kasaragod on 19.01.2002 alleging that accused did
not construct toilet in spite of receiving ₹20,000 allotted
from the office of DDE. Ext.P10 is the letter of DDE dated
30.01.2002 to AEO, Kasaragod, directing to conduct
enquiry regarding Ext.P9 complaint. Ext.P11 is the report
furnished by AEO to DDE on 31.05.2002 after conducting
enquiry on Ext.P9 complaint. Ext.P12 is the copy of the
proceedings dated 30.06.2000 of the DDE, Kasaragod
regarding the promotion and posting of Head Masters of
Primary schools, as per which, accused was promoted and
posted as Head Master in G.F.U.P. School, Kizhur with the
direction to joined duty on or before 22.07.2000. Ext.P13 is
the memo of charge issued against the accused by DDE,
Kasaragod as part of disciplinary action against him for
committing misappropriation and irregularities while
holding the post of Head Master, G.F.U.P. School, Kizhur.
According to this witness, though accused received fund for
CRL.A.NOS.1225, 1227
& 1228 OF 2017 16 2025:KER:93614
providing toilet facilities in G.F.U.P. School, he did not
construct the toilet.
12. PW2 examined in this case is the then Accounts
Officer in the Office of the DDE, Kasaragod, who had
conducted a surprise inspection at G.F.U.P. School, Kizhur
along with the then DYSP, Vigilance. He identified the joint
inventory report furnished in that regard as Ext.P14. He
stated that during the inspection, he realised that the
accused, who was the then Head Master, and one Gopinath,
who was in charge of the Head Master in his absence, had
committed grave irregularities, including misappropriation
of funds, during their tenure.
13. PW3 is the then AEO, Kasaragod, who handed
over Exts.P16 to P25 documents to the Investigator under
Ext.P15 seizure mahazar. Exts.P16 and P17 are the
applications for temporary advance against deposits in GPF
furnished by PW5 and PW10, respectively. Ext.P18 is the
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& 1228 OF 2017 17 2025:KER:93614
application for half pay leave from 18.06.2001 to
23.06.2001 furnished by the accused. Ext.P19 is the file
pertaining to the enquiry conducted by the AEO,
Kasaragod, on the complaint against the accused filed by
PW5 and PW10 for not disbursing their GPF amounts and
by one Moidu, the father of Fakaruneesa, a 6 th standard
student of the school, for not disbursing the scholarship for
Muslim girls for the period from 2001 to 2002. Ext.P20 is
the file containing the show cause notice issued by the AEO
to the accused for unauthorized absence and connected
papers. Ext.P21 is the file containing the explanation given
by the accused for unauthorized absence from duty, as per
the memo issued by the AEO, Kasaragod, dated
20.08.2001, and the challan evidencing the refund of the
excess salary drawn by the accused during the said period
of unauthorized absence.
14. Supporting the allegation in C.C.No.20/2016
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& 1228 OF 2017 18 2025:KER:93614
with respect to the misappropriation of ₹890, granted as a
lump sum grant for SC/ST students, PW4, the then
Development Officer, Grade II, in the SC/ST Department
Office, Kasaragod, had given evidence. According to the
learned counsel for the accused, on scanning the evidence
of PW4, the same would suggest that ₹890 alleged to be
misappropriated by the accused, was directly handed over
and it was misappropriated by the accused. At the same
time, PW4 deposed that the said amount was sanctioned
from the amount kept at the cash chest of the office of PW4.
In this connection, it is argued by the learned counsel for
the appellant that insofar as misappropriation of ₹890 is
concerned, the prosecution evidence is not convincing. But,
the Special Court found misappropriation of ₹890, as
alleged by the prosecution mainly relying on Ext.P32, letter
sent by the accused to SC/ST Development Officer,
Kasasragod demanding additional lump sum grant of ₹890
CRL.A.NOS.1225, 1227
& 1228 OF 2017 19 2025:KER:93614
along with the acquittance of the amount already disbursed
to the eligible students. Ext.P33 is the proceedings of the
Director of SC/ST Development Office,
Thiruvananthapuram enhancing the lump sum grant.
Ext.P36 series are the three allotment letters issued from
District Development Officer, SC/ST, Kasaragod, allotting
the funds to PW4 for disbursal. According to PW4, after
disbursement of the amount in the custody of the accused,
acquittance for disbursement of ₹890 was not received in
her office and on her enquiry, it was found that it was
misappropriated and the misappropriation found a place in
the newspaper also. As far as the amount of ₹890, alleged
to have been misappropriated by the accused, which was
allotted towards the lump sum grant, Ext.P30 is the
complaint filed by the parents of the students, namely
Smt.Sunitha, Smt.Vasanthi, Smt.Meena, etc., alleging non-
disbursement of the lump sum grant to their children.
CRL.A.NOS.1225, 1227
& 1228 OF 2017 20 2025:KER:93614
Ext.P30(a) is a report filed before the Development Officer,
SC/ST Department, Kasaragod. Ext.P31 would show that
₹890 towards lump sum grant for the year 2000-2001 was
received by the accused from SC/ST Department Officer,
Kasaragod Block Panchayat on 15.02.2001.
15. On a reading of the evidence as a whole, the
contention raised by the learned counsel for the appellant
that there is no evidence to prove non-disbursement of
₹890, the entrustment of ₹890 to the accused, and its
consequential misappropriation, could not be accepted.
16. In C.C.No.20/2016, it is submitted by the
learned counsel for the accused that as regards to
misappropriation of ₹33,120.40 which was collected under
the Sanchayka scheme, Exts.P41 and P42 were the pass
books and as per which, the accused and PW5 were having
joint account in the Chandragiri Post Office and therefore,
it could not be safe to hold that the misappropriation was at
CRL.A.NOS.1225, 1227
& 1228 OF 2017 21 2025:KER:93614
the instance of the accused alone from the joint account. In
this connection, the evidence of PW5 is relevant.
17. PW5 admitted that Exts.P41 and P42 were in the
joint account of the accused and PW5. According to him, as
per Ext.P41, an amount of ₹25,000 stood deposited as on
17.07.1999, and as per Ext.P42, as on 24.10.2000, a further
amount had also been deposited, and thus the total amount
available was ₹33,120.40 and PW5 deposed that the said
amount was withdrawn from the account by the accused,
and that the withdrawal slip was jointly signed by the
accused and PW5. His version further is that, out of which,
₹15,000 was deposited in the SB account opened in Post
Office, Chandragiri and passbook for the same is Ext.P43.
From the remaining amount, ₹15,000 was deposited in TD
account and the passbook for the same is Ext.P44. PW5
given evidence that though the accused had accepted
₹33,120.40 on closing the account, he handed over
CRL.A.NOS.1225, 1227
& 1228 OF 2017 22 2025:KER:93614
₹30,000 only, that too, after 9 months from the date of
withdrawal. Ext.P43 and Ext.P33 deposits are the said
amounts.
18. As far as the amount of ₹33,120.40 is concerned,
even though the same stood in the joint account of the
accused and PW5, as is evident from Exts.P41 and P42, the
categorical evidence of PW5 is that the said amounts were
withdrawn by the accused after both of them had jointly
signed the withdrawal slip. Anyhow, ₹30,000 was repaid by
the accused after 9 months, though ₹3120.40 paisa not at
all paid. However, it appears that going by the evidence of
PW4, the amount was entrusted to PW5 only after 9
months.
19. The third allegation in C.C.No.20/2016 is the
non-utilization of ₹20,000 sanctioned for the purpose of
constructing toilet facilities for G.F.U.P. School, which was
entrusted to the accused as the Head Master. Even though
CRL.A.NOS.1225, 1227
& 1228 OF 2017 23 2025:KER:93614
it is argued by the learned counsel for the accused that no
evidence was adduced by the prosecution to prove the
entrustment of the said amount, the learned Public
Prosecutor vehemently opposed this contention, relying on
Ext.P5(a), the cheque already referred to hereinabove, issued
for ₹20,000 to the accused, who was the then Head Master of
G.F.U.P. School, Kizhur. It was further pointed out that he
failed to construct the toilet, which would show that no toilet
was constructed and that the amount was misappropriated by
the accused, as alleged in C.C.No. 20/2016. On scanning the
evidence available, the prosecution succeeded in proving that
the accused got custody/entrustment of ₹20,000 for
construction of toilets of girl students and misappropriated the
said amount without spending a single paise for the
construction of toilets, as evidenced from Ext.P11 report proved
through PW1. Thus, the allegation of the prosecution is proved
beyond reasonable doubt by the prosecution.
CRL.A.NOS.1225, 1227
& 1228 OF 2017 24 2025:KER:93614
20. Coming to C.C.No.21/2016, as per the finding in
paragraph No.45 of the judgment, the Special Court found
that as regards to allegation of misappropriation of
₹24,600, the GPF advance of PW13 and ₹77,354, the salary
of the staff members for the month of March, 2001, on
analysis of the evidence of PW5, PW10 and PW13, on par
with Ext.P50, P51, P52, P55, P64 and P65 would show that
the same were disbursed to the persons entitled, even
though there was some delay in disbursing the amount due
to mistake on the part of the accused. Thus, the Special
Court did not find any misappropriation in that regard and
the said finding is not under challenge. However, the
Special Court found the other allegations, which were
addressed in paragraph No.43 of the judgment, relying on
the evidence of PW2, PW5, PW10 and PW13 along with
Exts.P68 and P71. On perusal of the evidence of PW5,
PW10 and PW13, it could be gathered that the accused had
CRL.A.NOS.1225, 1227
& 1228 OF 2017 25 2025:KER:93614
collected ₹5,280 towards the professional tax due to the
Panchayat for the period 2000-2001 from PW5, PW10 and
PW13, who were the teachers of the G.F.U.P. School,
Kizhur. In addition to that, PW14, the Secretary of the
Panchayat, also deposed corroborating the versions of PW5,
PW10 and PW13, by stating that G.F.U.P. School, Kizhur
failed to remit the second instalment of professional tax for
the period 2000-2001 and the first instalment for the
period 2001-2002. Noting this, PW14 had issued a letter to
the Sub Treasury Officer, Chattanchal directing him not to
disburse the salary of the staff members of the school.
Thereafter, on the strength of Exts.P69(a) and P70(a), the
amounts were remitted.
21. The evidence of PW14 would further suggest that
it is the duty of the Head of the Department to collect and
remit the professional tax twice in a year. The evidence of
PW5, PW10 and PW13 would show that the said amount
CRL.A.NOS.1225, 1227
& 1228 OF 2017 26 2025:KER:93614
was collected from them and the evidence of PW5, PW10
and PW13 supported by the evidence of PW14, as discussed
would show that there was misappropriation of the said
sum by the accused, as contended. Thus, the allegation in
C.C.No.21/2016 is misappropriation of ₹5,280 is also
proved beyond reasonable doubt.
22. Coming to C.C.No.23/2006, the allegation is
confined to misappropriation of ₹8,079 as the excess salary
drawn by the accused in the month of August 2001 and
₹44,500 obtained as GPF advance of PW5 and PW10,
totalling ₹52,579. The observation of the Special Court in
paragraph No.49 is that, as regards the alleged
misappropriation of ₹44,500, being the GPF advance due
to PW5 and PW10, the learned Special Judge considered
the evidence of PW5, PW10 and PW13 along with Exts.P16,
P17, P37 to P40 and P52 to prove the same. According to
PW5 and PW10, the GPF advance amount was encashed by
CRL.A.NOS.1225, 1227
& 1228 OF 2017 27 2025:KER:93614
the accused from the Treasury on 20.12.2001, but the same
was not disbursed to them despite repeated demands made
by them. Thereafter, on lodging police complaint before
the police station regarding non disbursement of the
amount, the wife of the accused reached the Bekkal police
station and paid the amount. But Ext.P40(a) entry in
Ext.P40 cash book would show that the said amount was
disbursed thereafter. As far as misappropriation of the said
amount is concerned, merely repaying the same, that too
after a complaint was lodged before the police, would not
absolve the accused from liability.
23. Insofar as the drawing of excess salary by the
accused as alleged in C.C.No.23/2016 is concerned, the
learned Special Judge did not find the said
misappropriation for the reasons stated in paragraph No.46
of the judgment and the said finding is not under challenge
and therefore, the same need not be re-visited.
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& 1228 OF 2017 28 2025:KER:93614
24. Having appraised the evidence discussed, what
could be culled out is that, in all the three cases, the
ingredients to prove the offences alleged by the prosecution
are proved beyond reasonable doubt. Therefore, the
conviction imposed by the learned Special Judge holding so
is only to be confirmed. Thus, the conviction does not
require any interference.
25. Coming to the sentence, the learned counsel for the
appellant/accused pressed for reduction in sentence even below
the statutory minimum. In order to substantiate reduction of
sentence, the learned counsel for the appellant/accused placed
decision of the Apex Court in Ambi Ram v. State of
Uttarakhand reported in [2019 KHC 6121], where the
Apex Court considered a case within the ambit of Section 5(2)
of the Prevention of Corruption Act, 1947 (for short, 'the PC Act,
1947' hereinafter) for reducing the sentence, where the Apex
Court considered proviso to Section 5(2) of the PC
CRL.A.NOS.1225, 1227
& 1228 OF 2017 29 2025:KER:93614
Act, 1947.
26. On perusal of Section 5(2) of the PC Act, 1947, the
minimum sentence provided for the offence of criminal
misconduct was not less than one year, but which could be
extended to seven years, and shall also be liable for fine.
Proviso to Section 5(2) of the PC Act, 1947 says that, "the court
may, for any special reasons recorded in writing, impose a
sentence of imprisonment of less than one year."
27. On perusal of Ambi Ram's case (supra), in fact, the
Supreme Court assigned eight reasons to apply the proviso to
reduce the sentence less than one year. Thus, the Apex Court
reduced the sentence beyond the minimum, by applying the
benefit of proviso by assigning eight reasons. Coming to the PC
Act, 1988 as well as the P.C. (Amendment) Act, 2018, no
corresponding proviso is available to reduce the sentence
beyond the statutory minimum.
28. That apart, this Court, in Sasidharan Nair C. v.
State of Kerala reported in [2025 KHC OnLine 1152], has
CRL.A.NOS.1225, 1227
& 1228 OF 2017 30 2025:KER:93614
observed in paragraph Nos.33 and 34, as under:
"33. Coming to the contention raised
by the learned counsel for the 2 nd
accused/2nd appellant, in the decision in K.
Pounammal v. State represented by
Inspector of Police, reported in [2025
INSC 1014], where the Apex Court
modified the sentence for the period already
undergone, i.e., the sentence lesser than the
statutory minimum, it could be gathered
that the Apex Court exercised the said
power under Article 142 of the Constitution
of India. In this connection, it is relevant to
refer another decision of the Apex Court in
Dashrath v. State of Maharashtra,
reported in 2025 KHC 6456, where the
Apex Court considered the question as to
whether power conferred under Article 142
of the Constitution of India can be exercised
to reduce a minimum sentence prescribed in
the Statute. In the said decision, the Apex
Court held that the exercise of power
conferred by Article 142, in a case such as
the present where a minimum sentence is
CRL.A.NOS.1225, 1227
& 1228 OF 2017 31 2025:KER:93614
prescribed by the statute, cannot be
tinkered, for, the same would amount to
legislation by the Court; and, prescription
of a term of sentence quite contrary to what
the Parliament has legislated would be
legally impermissible. The statutory
prescription in relation to punishment for a
minimum period, unless challenged, cannot
be reduced by this Court even in exercise of
powers under Article 142 of the
Constitution.
34. Going by the decision in
Dashrath's case (supra), the power under
Article 142 of the Constitution of India also
could not be invoked to reduce a sentence
than the minimum sentence provided by the
statute, as the same would amount to
legislation by the Court overstepping on the
domain of the legislature, which is
impermissible."
29. Thus, this Court cannot reduce the sentence
beyond the statutory minimum and this Court has no power
CRL.A.NOS.1225, 1227
& 1228 OF 2017 32 2025:KER:93614
equivalent to Article 142 of the Constitution of India.
Therefore, this Court can only reduce the sentence within
the statutory minimum.
In the result, these appeals are allowed in part. The
convictions imposed by the Special Court are confirmed
and the sentences stand modified as under:
a) The appellant/accused is sentenced to undergo Simple
Imprisonment for 1 year (one year) and to pay fine of
₹5,000 (Rupees Five Thousand) and in default of payment
of fine to undergo Simple Imprisonment for 5 (five) weeks
for the offence punishable u/s 13 (1) (c) r/w 13 (2) of P.C
Act.
b) The appellant/accused is sentenced to undergo Simple
Imprisonment for a period of 1 year (one year) and to pay
fine of ₹5,000 (Rupees Five Thousand) and in default of
payment of fine to undergo Simple Imprisonment for a
CRL.A.NOS.1225, 1227
& 1228 OF 2017 33 2025:KER:93614
period of 5 (five) weeks for the offence punishable u/s 13 (1)
(d) r/w 13 (2) of P.C Act.
a) The appellant/accused is sentenced to undergo Simple
Imprisonment for 1 year (one year) and to pay fine of
₹5,000 (Rupees Five Thousand) and in default of payment
of fine to undergo Simple Imprisonment for 5 (five) weeks
for the offence punishable u/s 13 (1) (c) r/w 13 (2) of P.C
Act.
b) The appellant/accused is sentenced to undergo Simple
Imprisonment for a period of 1 year (one year) and to pay
fine of ₹5,000 (Rupees Five Thousand) and in default of
payment of fine to undergo Simple Imprisonment for a
period of 5 (five) weeks for the offence punishable u/s 13 (1)
(d) r/w 13 (2) of P.C Act.
CRL.A.NOS.1225, 1227
& 1228 OF 2017 34 2025:KER:93614
a) The appellant/accused is sentenced to undergo Simple
Imprisonment for 1 year (one year) and to pay fine of
₹5,000 (Rupees Five Thousand) and in default of payment
of fine to undergo Simple Imprisonment for 5 (five) weeks
for the offence punishable u/s 13 (1) (c) r/w 13 (2) of P.C Act.
b) The appellant/accused is sentenced to undergo Simple
Imprisonment for a period of 1 year (one year) and to pay
fine of ₹5,000 (Rupees Five Thousand) and in default of
payment of fine to undergo Simple Imprisonment for a
period of 5 (five) weeks for the offence punishable u/s 13 (1)
(d) r/w 13 (2) of P.C Act.
29. The substantive sentences shall run concurrently
and the default sentences shall run separately.
30. The orders suspending sentence and granting
bail to the accused stand cancelled and the bail bonds
executed by the accused also stand cancelled. The
CRL.A.NOS.1225, 1227
& 1228 OF 2017 35 2025:KER:93614
appellant/accused is directed to surrender before the
Special Court, forthwith to undergo the modified 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 Special Court, forthwith, without fail, for information
and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
