[Cites 16, Cited by 0]
Kerala High Court
A.P.Ramachandran vs State Of Kerala on 16 December, 2025
2025:KER:97139
CRL.A.Nos.354 AND 357 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 16TH DAY OF DECEMBER 2025/25TH AGRAHAYANA,
1947
CRL.A NO. 354 OF 2017
CRIME NO.3/2005 OF VACB, KOZHIKODE
AGAINST THE JUDGMENT DATED 30.03.2017 IN CC NO.18
OF 2009 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD.
APPELLANT/2ND ACCUSED:
A.P.RAMACHANDRAN
S/O.GOVINDA KURUP, 'KEERTHI', HOUSE NO.32/211
A, KUNNUMMELPARAMBA, P.O.VENGERI, KANNADIKKAL,
KOZHIKODE. (HELPER, KERALA TOURISM DEVELOPMENT
CORPORATION (NOT IN SERVICE))
BY ADV SRI.DEVAPRASANTH.P.J.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DY.S.P.,
VIGILANCE AND ANTI-CORRUPTION BUREAU NORTHERN
RANGE, KOZHIKODE, REPRESENTED BY PUBLIC
PROSECUTOR,
HIGH COURT OF KERALA.
SRI.RAJESH.A, SPL.PP, VACB
SMT.REKHA.S, SR.PP. VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.11.2025, ALONG WITH CRL.A.357/2017, THE COURT ON
16.12.2025 DELIVERED THE FOLLOWING:
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CRL.A.Nos.354 AND 357 OF 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
CRL.A NO. 357 OF 2017
CRIME NO.3/2005 OF VACB, KOZHIKODE
AGAINST THE JUDGMENT DATED 30.03.2017 IN CC NO.19
OF 2009 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD.
APPELLANT/2ND ACCUSED:
A.P.RAMACHANDRAN
S/O GOVINDA KURUP, KEETHI, HOUSE NO. 32/211A,
KUNNUMMELPARAMBA, P.O.VENGERI, KANNADIKKAL,
KOZHIKODE.(HELPER,KERALA TOURISM DEVELOPMENT
CORPORATION (NOT IN SERVICE))
BY ADV SRI.DEVAPRASANTH.P.J.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DY.SP, VIGILANCE AND ANTI-
CORRUPTIONBUREAU NORTHERN RANGE, KOZHIKODE.
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
SRI.RAJESH.A, SPL.PP, VACB
SMT.REKHA.S, SR.PP. VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.11.2025, ALONG WITH CRL.A.354/2017, THE COURT ON
16.12.2025 DELIVERED THE FOLLOWING:
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CRL.A.Nos.354 AND 357 OF 2017
3
CR
COMMON JUDGMENT
Dated this the 16th day day of December, 2025
Sri.A.P.Ramachandran, who is the 2nd accused in
C.C.No.18/2009 as well as C.C.No.19/2009 on the files of the
Enquiry Commissioner and Special Judge, Kozhikode, is the
appellant in both these appeals. The appellant assails
common judgment dated 30.03.2017 in the above cases.
The State of Kerala, represented by the Vigilance and Anti-
corruption Bureau is the respondent herein.
2. Heard the learned counsel for the
accused/appellant as well as the learned Special Public
Prosecutor in detail. Perused the records of the Special Court
as well as the common verdict impugned.
3. I shall refer the parties in these appeals as
'appellant' and 'prosecution' for easy reference.
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4. In both these cases, the prosecution alleges
commission of offences punishable under Section 13(2) r/w
Sections 13(1)(c) and (d) of the Prevention of Corruption Act,
1988 (hereinafter referred to as 'PC Act, 1988') and under
Sections 409, 420, 465, 468, 471 and 477A r/w. Section 34 of
the Indian Penal Code (hereinafter referred to as 'IPC'),by the
accused. The prosecution case in C.C.No.18/2009 is that the
2nd accused, who worked, as public servant as helper, along
with 1st accused, who was the accountant in Hotel Malabar
Mansion, Kozhikode, a hotel run by Kerala Tourism
Development Corporation, (KTDC), after sharing common
intention to make illegal monetary gain, misappropriated a sum
of ₹1,76,000 in between 25.06.2001 to 20.12.2001 by forging
and falsifying the records. In C.C.No.19/2009, the allegation is
that, in similar way, in between 15.01.2002 to 21.12.2002 an
amount of ₹2,60,000 was misappropriated by forging and
falsifying the records by the accused.
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5. The Special Court framed charge and jointly tried
both cases. PW1 to PW17 were examined and Exts.P1 to
P64 were marked on the side of the prosecution. During
cross-examination of PW3 and PW5, Ext.D1, Ext.D1(a) and
Ext.D2 contradictions were marked on the side of the
defence.
6. The special court addressed the evidence and
found that the accused committed the above offences and
accordingly, the appellant was convicted and sentenced as
under:
"C.C.18/2019"
a) He shall suffer rigorous imprisonment for three
years and to pay a fine of ₹80,000/- (Rupees eighty
thousand only) and, in default of payment of the
fine, he shall undergo rigorous imprisonment for six
months for offence under Section 13(2) r/w 13(1)(c)
of the P.C. Act.
b) He shall suffer rigorous imprisonment for three
years and to pay a fine of ₹80,000/- (Rupees eighty
thousand only) and, in default of payment of the
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fine, he shall undergo rigorous imprisonment for six
months for offence under Section 13(2) r/w 13(1)(d)
of the P.C. Act.
c) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹10,000/- (Rupees Ten
thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 409 IPC.
d) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹10,000/- (Rupees Ten
thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 420 IPC.
e) He shall undergo rigorous imprisonment for six
months for offence under Section 465 IPC.
f) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹10,000/- (Rupees Ten
thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 468 IPC.
g) He shall undergo rigorous imprisonment for six
months for offence under Section 471 IPC
h) He shall undergo rigorous imprisonment for one
year for offence under Section 477A IPC
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i) The substantial sentences of imprisonment shail
run concurrently.
j) The period of detention, if any, undergone by the
accused during the investigation, inquiry or trial of
this case, shall be set off against the term of
substantive sentences of imprisonment.
C.C. 19/2009:-
a) He shall suffer rigorous imprisonment for three
years and to pay a fine of ₹ 1,20,000/- (Rupees one
lakh twenty thousand only) and, in default of
payment of the fine, he shall undergo rigorous
imprisonment for six months for offence under
Section 13(2) r/w 13(1)(c) of the P.C. Act.
b) He shall suffer rigorous imprisonment for three
years and to pay a fine of ₹ 1,20,000/- (Rupees one
lakh twenty thousand only) and, in default of
payment of the fine, he shall undergo rigorous
imprisonment for six months for offence under
Section 13(2) r/w 13(1)(d) of the P.C. Act.
c) He shall undergo rigorous imprisonment for three
years and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment of
the fine, to undergo rigorous imprisonment for three
months for offence under Section 409 IPC.
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d) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment of
the fine, to undergo rigorous imprisonment for two
months for offence under Section 420 IPC.
e) He shall undergo rigorous imprisonment for six
months for offence under Section 465 IPC.
f) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment of
the fine, to undergo rigorous imprisonment for three
months for offence under Section 468 IPC.
g) He shall undergo rigorous imprisonment for six
months for offence under Section 471 IPC.
h) He shall undergo rigorous imprisonment for one
year for offence under Section 477A IPC.
i) The substantial sentences of imprisonment shall
run concurrently.
j) The period of detention, if any, undergone by the
accused during the investigation, inquiry or trial of
this case, shall be set off against the term of
substantive sentences of imprisonment."
7. The learned counsel for the appellant argued that
the evidence available is insufficient to fasten criminal
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culpability upon the appellant, and there is no convincing
evidence to prove that the forgery in Ext.P37 series and
Ext.P27 series was done by the accused either to hold that he
had forged and falsified the records for the purpose of
misappropriation as alleged, or he had misappropriated the
amounts alleged.
8. Whereas it is submitted by the learned Public
Prosecutor that the evidence of PW5 and PW6, identifying the
handwriting and signatures of the appellant, being persons who
worked along with the appellant, is sufficient to prove that
Ext.P37 series and Ext.P27 series were forged and falsified by
the accused by himself, as PW5 and PW6 identified the
handwritings therein as that of the appellant.
9. Having considered the rival submissions, points
arise for consideration are,
1. Whether the Special Court went wrong in holding
that the accused committed the offence
punishable under Section 13(2) r/w 13(1)(c) of
the PC Act,1988 in C.C.18/2009?
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2. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 13(2) r/w
13(1)(d) of the PC Act, 1988 in C.C.18/2009?
3. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 409 of IPC
in C.C.18/2009?
4. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 420 of IPC
in C.C.18/2009?
5. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 465 of IPC
in C.C.18/2009?
6. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 468 of IPC
in C.C.18/2009?
7. Whether the Special Court went wrong in
holding that the accused committed the
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offence punishable under Section 471 of IPC
in C.C.18/2009?
8. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 477A of IPC
in C.C.18/2009?
9. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 13(2) r/w
13(1)(c) of the PC Act, 1988 in C.C.19/2009?
10. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 13(2) r/w
13(1)(d) of the PC Act, 1988 in C.C.19/2009?
11. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 409 of IPC
in C.C.19/2009?
12. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 420 of IPC
in C.C.19/2009?
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13. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 465 of IPC
in C.C.19/2009?
14. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 468 of IPC
in C.C.19/2009?
15. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 471 of IPC
in C.C.19/2009?
16. Whether the Special Court went wrong in
holding that the accused committed the
offence punishable under Section 477A of IPC
in C.C.19/2009?
17. Whether the impugned verdict would require
any interference by this Court.
18. Order to be passed.
10. Point Nos.1 to 18:
Assimilating the arguments tendered by both sides, the
prosecution case rests on misappropriation based on
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Ext.P37(b), Ext.P37(d), Ext.P37(f), Ext.P37(h), Ext.P37(j),
Ext.P37(l), Ext.P37(n), Ext.P37(p) and Ext.P37(r) to the tune of
₹1,76,000 in C.C.No.18/2009 and based on Ext.P37(t),
Ext.P37(v), Ext.P37(x), Ext.P27(e), Ext.P27(g), Ext.P27(i),
Ext.P27(k), Ext.P27(m), Ext.P27(o) Ext.P27(q), Ext.P27(s),
Ext.P27(u) and Ext.P27(w), coming to a total sum of
₹2,60,000. The learned Special Judge in paragraph No.44,
shown the allegations in tabular form. Since the same are
helpful to decide the points raised, the same are extracted as
under:
Schedule showing the details of misappropriation made by the
DRCR Correspon Pay in Slips Differenc
Nos. ding e/Short
Ext.Nos. Ext.Nos. Amount Ext.Nos. Amount remittanc
of as per of as per e (In ₹)
counterfo counterfo Banker's Bank
il of pay- il (In copy of copy of
in-slip ₹) pay-in- Pay in
slips slip/Bank
statement
(In₹)
1 25-06-2001 1588 23(2) P37(b) 49,905 P50 19,905 30,000
2 25-07-2001 1928 23(a)(2) P37(d) 24,335 P50(a) 4,335 20,000
3 08-08-2001 1942 23(a)(4) P37(f) 27,152 P50(b) 7,152 20,000
4 11-09-2001 1977 23(a)(6) P37(h) 31,046 P50(c) 1,046 30,000
5 09-10-2001 1596 23(b)(2) P37(j) 6,376 P50(d) 376 6,000
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DRCR Correspond Pay in Slips Differenc
Nos. ing e/Short
Ext.Nos. remittanc
e (In ₹)
Ext.Nos. Amount Ext.Nos. Amount
of as per of as per
counterfo counterfo Banker's Bank
il of pay- il (In copy of copy of
in-slip ₹) pay-in- Pay in
slips slip/Bank
statement
(In₹)
6 23-10-2001 1610 23(b)(4) P37(l) 23,335 P50(e) 3,335 20,000
7 16-11-2001 1635 23(b)(6) P37(n) 25,710 P50(f) 5,710 20,000
8 08-12-2001 1658 23(b)(8) P37(p) 17,279 P50(g) 7,279 10,000
9 20-12-2001 1673 23(b)(10) P37(r) 24,945 P50(h) 4,945 20,000
TOTAL 2,30,083 54,083 1,76,000
Schedule showing the details of misappropriation made by the
DRCR Correspon Pay in Slips Differenc
Nos. ding e/Short
Ext.Nos. Ext.Nos. Amount Ext.Nos. Amount remittanc
of as per of as per e (In ₹)
counterfo counterfo Banker's Bank
il of pay- il (In copy of copy of
in-slip ₹) pay-in- Pay in
slips slip/Bank
statement
(In₹)
1 15-01-2002 1701 23(c)(1) P37(t) 23,757 P50(i) 3,757 20,000
2 09-02-2002 1727 23(c)(3) P37(v) 37,373 P50(j) 7,373 30,000
3 16-03-2002 1763 23(c)(5) P37(x) 33,001 P50(k) 3,001 30,000
4 24-04-2002 1825 23(d)(2) P27(e) 34,430 P50(l) 4,430 30,000
5 18-05-2002 1851 23(d)(5) P27(g) 28,307 P50(m) 8,307 20,000
6 08-06-2002 1875 23(d)(7) P27(i) 27,516 P50(n) 7,516 20,000
7 28-06-2002 1896 23(d)(9) P27(k) 22,674 P50(o) 2,674 20,000
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DRCR Correspon Pay in Slips Differenc
Nos. ding e/Short
Ext.Nos. remittanc
e (In ₹)
Ext.Nos. Amount Ext.Nos. Amount
of as per of as per
counterfo counterfo Banker's Bank
il of pay- il (In copy of copy of
in-slip ₹) pay-in- Pay in
slips slip/Bank
statement
(In₹)
8 16-07-2002 1317 23(e)(2) P27(m) 22,311 P50(p) 2,311 20,000
9 31-08-2002 1364 23(e)(4) P27(o) 23,239 P50(q) 3,239 20,000
10 10-09-2002 1374 23(e)(6) P27(q) 18,217 P50(r) 8,217 10,000
11 19-10-2002 2125 23(f)(2) P27(s) 12,698 P50(s) 2,698 10,000
12 16-11-2002 2144 23(f)(4) P27(u) 15,009 P50(t) 5,009 10,000
13 21-12-2002 2180 23(f)(6) P27(w) 26,905 P50(u) 6,905 20,000
TOTAL 3,25,437 65,437 2,60,000
11. According to the learned counsel for the appellant,
insofar as Ext.P27 series and Ext.P37 series documents,
corresponding to Ext.P23 series documents as per the
tabular form, are concerned, the same were not written by
the accused. According to him, going by the evidence of
PW1, who worked as receptionist of the Malabar Mansion
hotel of KTDC from 03.03.2003 till 2014, and also PW2, who
worked as Manager in the Nothern region of KTDC, from
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CRL.A.Nos.354 AND 357 OF 2017
2002 - 2006, when amounts received by the receptionist, the
receptionist would entrust the money to the accountant, in this
case, the first accused, who is no more, and the accountant
would prepare pay-in-slips after entering the same in the
Details of Receipts of Cash and Remittance (DRCR) and then
entrust the same to the helper for remitting the amount. But as
per the evidence of PW5, who was the receptionist during the
relevant period in the same hotel, the above entry in DRCR and
preparation of pay-in-slips would be done by the receptionist
and the duty of the helper is only remittance. Therefore, the
prosecution case that it was the accused who worked as a
helper forged and falsified the counterfoils to show a higher
amount therein than the acutal amount remitted in the bank as
per the pay-in-slips, marked as Exts.P50, and Ext.P50(a) to
P50(u) is an impossibility since the said overt acts could not be
done by the helper/appellant. According to him, even though
PW5 identified the handwritings and signatures in Ext.P37
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series and Ext.P27 series counterfoils of the pay-in-slips as
that of the accused, during cross-examination, when he was
asked as to whether he had given statement before the
police to the effect that PW5 worked along with
Sri.A.P.Ramachandran and he was familiar with his
handwriting, signatures and initials and also he had
witnessed that Sri.A.P.Ramachandran writing, signing and
putting initials with suggestion that no such statement was
given to the police, he replied that he had nothing to say.
According to the learned counsel for the appellant, this is a
contradiction. In fact, when the Investigating Officer, who
recorded the statement of PW5, was examined, no attempt
was made by the learned counsel for the appellant before the
Special Court to prove the contradiction after suggesting the
same to the Investigating Officer and in fact, legally the
contradiction was not proved. It is relevant to note that in this
context, the learned Special Public Prosecutor would submit
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that the learned counsel for the accused vigilantly did not ask
this question to the Investigating Officer to prove this
contention since in the previous statement of PW5, he had
stated so before the police and thus, in fact, no contradiction
in the evidence of PW5.
12. According to the learned counsel for the appellant,
apart from the evidence of PW5 and PW6, the prosecution
did not attempt to get comparison of the handwritings and
signatures in Ext.P27 series as well as Ext.P37 series by
getting an expert opinion to corroborate the version of PW5
and PW6. He also argued that PW5 and PW6 are not
independent witnesses and they are interested witnesses.
13. Thus argument advanced by the learned counsel
for the appellant is that when PW1 and PW2 given evidence
that initially DRCR and bank pay-in-slips of counterfoils
would be prepared by the accountant or sometimes by the
receptionist as stated by PW5, there is no justification to hold
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that it was the accused prepared Ext.P50 series pay-in-slips
as well as Ext.P37 series and Ext.P27 series counterfoils. In
this regard, the learned Special Public Prosecutor specifically
relied on the evidence of PW5 to the effect that there was
practice to deal with the reception section by different
officers. In the instant case, the allegation is that the accused
after suppressing the pay-in-slips prepared by the
receptionist prepared pay-in-slips in his own handwriting and
used to remit the amount to the bank.
14. On perusal of the evidence of PW6, he supported
Ext.P27 series and Ext.P37 series. Apart from that, he had
deposed that he was familiar with Shri.A.P. Ramachandran
(appellant), his handwriting, signatures, and initials, and he
had repeatedly witnessed Shri.A.P.Ramachandran writing,
signing, and initialing documents. Therefore, his evidence is
that the handwritings in Ext.P27 series and Ext.P37 series
are that of Shri.A.P. Ramachandran.
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15. Section 47 of the Evidence Act, 1872 provides the
mode of proof to be complied with for establishing disputed
handwriting, it is apposite to refer Section 47 which reads as
under:
"47. Opinion as to hand-writing, when relevant.--
When the Court has to form an opinion as to the
person by whom any document was written or signed,
the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to
be written or signed that it was or was not written or
signed by that person, is a relevant fact.
Explanation- a person is said to be acquainted
with the hand-writing of another person when he has
seen that person write, or when he has received
documents purporting to be written by that person in
answer to documents written by himself or under his
authority and addressed to that person, or when, in
the ordinary course of business, documents
purporting to be written by that person have been
habitually submitted to him."
Explanation to Section 47 provides how a person is said
to be acquainted with the handwriting of another person by
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explaining the three modalities for the same. The
explanation to Section 47 provides that a person is said to be
acquainted with the handwriting of another person when he
had seen that person write and such a person is competent
to prove the disputed handwriting of a particular person.
16. In the instant case, even though it is argued by the
learned counsel for the appellant that PW5 and PW6 are
interested witnesses, in fact, nothing was extracted to find so
in the instant case and therefore, the evidence of PW5, which
is in conformity with the explanation to Section 47 of the
Evidence Act, is sufficient to prove that the handwritings in
Ext.P27 series and Ext.P37 series are that of the accused.
Thus the prosecution succeeded in proving that Ext.P27
series and Ext.P37 series are written by the accused and he
was the person entrusted with the amounts collected as per
Ext.P27 series and Ext.P37 series.
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17. Here, PW12 was examined by the prosecution to
prove Ext.P54 sanction issued by him to take cognizance
against both accused persons and to prosecute him, and
there is no challenge to the said submission. As regards the
evidence of PW1, it is confined to the marking of Exts.P2 to
P4 pay-in-slips maintained during the period from 19.11.2001
to 28.12.2002. It was through him that Ext.P5 and Ext.P5(a)
Daily Sales Registers maintained by the respondent, as well
as Exts.P6, P6(a) and P7 Daily Sales Registers maintained
at the snacks bar of the Malabar Mansion Hotel, were
proved. Apart from that, Ext.P8 and Ext.P8(a) to P8(o), which
are the carbon copies of the reception receipt books used in
the reception during the period from 10.11.2001 to
27.12.2002, were also tendered in evidence through PW1.
Ext.P9, the internal audit report for the period from
01.04.2002 to 30.09.2002, and Ext.P10, the internal audit
report for the half year ending on 31.03.2003, were also
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tendered in evidence through him, apart from proving the
entries produced in the Ext.P2 series Daily Sales Register
book of the beer and wine parlour.
18. Coming to the evidence of PW9, he deposed in
the mode of collection and remittance of the amounts as
argued by the learned counsel for the accused. Here, the
prosecution relied on Ext.P27 series and Ext.P37 series
counterfoils to show that they were forged by the accused in
his own handwriting after remitting the amounts as per
Ext.P50(a) to Ext.P50(u) before the bank, showing a lesser
sum than the amounts actually collected, as shown in the
tabular form already extracted above.
19. Even though it is argued by the learned counsel
for the appellant that the accused, who worked as helper,
was assigned the duty to remit the amounts as alleged by the
prosecution, he had remitted the amounts as per Ext.P50(a)
to (u) pay-in-slips and had entrusted the counterfoils marked
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as Ext.P27 series and Ext.P37 series to the accountant, he
did not know the corrections, manipulations and falsification
of forged documents carried out by somebody and therefore,
he is innocent and the finding of the special court is wrong
this contention could not be digested because of the simple
reason, as alleged by the prosecution, all the entries in
Ext.P50, Ext.P50(a) to Ext.P50(u), Ext.P27 series and
Ext.P37 series are in the handwriting of the same person and
the manipulations also were carried out at the instance of the
same person and according to PW5 the handwritings in
Ext.P50, Ext.P50(a) to (u), Ext.P27 series and Ext.P37 series
are in the handwritings of the accused. When the question as
whether who comitted forgery and falsification of Ext.P37
series and Ext.P27 series, the evidence of PW5 in this regard
identifying the handwritings in the above documents as that
of the accused is not at all shaken in cross-examination by
the manner known to law. Therefore, the Special Court has
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rightly found that the forgery, falsification, and use of the
same were carried out at the instance of the accused, and
accordingly, the said amounts were misappropriated by the
accused/appellant. That apart, it could be seen that once the
amount is entrusted to the accused as a helper and when the
amount remitted was something less than the actual amount
as per the DRCR register, marked as Ext.P23(a), Ext.P23(a)
(2), P23(a)(4), P23(a)(6), P23(b)(2), P23(b)(4), P23(a)(6),
Ext.P23(b)(8) and Ext.P23(b)(10) responsibility falls on the
accused to account for the amount he got entrusted. Here,
the case is that, he had got entrustment of only the amount
shown in Ext.P50(a) to Ext.P50(u) series. But when the
handwritings in Ext.P37 series and Ext.P27 series compared
with Ext.P25 and Ext.P55(a) to Ext.P55(u), it is already found
that all these handwritings are that of the accused.
20. It is true that the prosecution did not attempt to get
corroborative opinion evidence with the aid of an expert to
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prove the handwriting of the accused in Ext.P37 series and
Ext.P27 series as well as Ext.P50 series documents. The law is
well settled that in the absence of corroborative evidence also,
substantive evidence alone is sufficient to find commission of
offences and the law is well settled that corroborat ive evidence
alone could not be relied on to find commission of offences
without the support of the substantive evidence.
21. 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."
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22. Section 409 is pari materia to Section 316(5) of
the Bharatiya Nyaya Sanhita, 2023 (`BNS' for short) and
Section 316(5) of BNS reads as under:
"316(5): 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.""
23. 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.
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24. 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 therein.
25. In order to sustain a conviction under section 409
of the IPC, 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
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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 Sadhupati
Nageswara Ra v. State of Andhra Pradesh's case (supra).
26. 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 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
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criminal breach of trust; but something more than that is
required to bring home the dishonest intention.
27. Tracing the ingredients of the offence punishable
under Section 477A of IPC, Section 477A provides as under:
"Section 477A - Falsification of Accounts :
"Whoever, being a clerk, officer or servant, or
employed or acting in the capacity of a clerk, officer
or servant, willfully, and with intent to defraud,
destroys, alters, mutilates or falsifies any book,
electronic record, paper, writing, valuable security or
account which belongs to or is in the possession of
his employer, or has been received by him for or on
behalf of his employer, or willfully, and with intent to
defraud, makes or abets the making of any false
entry in, or omits or alters or abets the omission or
alteration of any material particular from or in any
such book, electronic record, paper, writing, valuable
security or account, shall be punished with
imprisonment of either description for a term which
may extend to seven years, or with fine, or with
both."
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28. Section 344 of BNS is corresponding to Section
477A of IPC. The same reads as under:
"344. Falsification of accounts:- Whoever,
being a clerk, officer or servant, or employed or
acting in the capacity of a clerk, officer or servant,
wilfully, and with intent to defraud, destroys, alters,
mutilates or falsifies any book, electronic record,
paper, writing, valuable security or account which
belongs to or is in the possession of his employer, or
has been received by him for or on behalf of his
employer, or wilfully, and with intent to defraud,
makes or abets the making of any false entry in, or
omits or alters or abets the omission or alteration of
any material particular from or in, any such book,
electronic record, paper, writing, valuable security or
account, shall be punished with imprisonment of
either description for a term which may extend to
seven years, or with fine, or with both."
29. The three ingredients to prove the offences are:
(i) That at the relevant point of time, the accused should
be a clerk or officer or servant or acting in that capacity ;
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(ii) That he should destroy, alter, mutilate or falsify
any book, electronic record, paper, writing, valuable security
or account, which belongs to or was in the possession of his
employer and
(iii) The act should have been done willfully and with
an intention to defraud. To convict a person under section
477A of the IPC, the prosecution has to prove that there was
a willful act, which had been made with an intent to defraud
and while proving "Intention to defraud", the prosecution has
to further prove the two elements that the act was an act of
deceit and it had caused an injury. In the present case, there
may be an injury, but there is no deceit.
30. For the offence under Section 477A of IPC, what
has got to be proved is twofold viz., that the person who
commits the offence is a clerk, officer or servant, and
secondly, that there was intent to defraud. It is sufficient, to
satisfy the words of the section, to prove that the person
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charged under this section is one who undertakes to perform
and does perform the duties of a clerk or servant whether in
fact he is a clerk or servant or not, and though he is under
no obligation to perform such duties and receives no
remuneration. The emphasis is upon the words "in the
capacity of a clerk, officer or servant".
31. To attract Section 477A, the-employee concerned
must destroy, alter, mutilate or falsify book or accounts etc, of
the employer, inter alia, with intent to defraud. The term
"intend to defraud" has already been explained in Section 25
of IPC. It contains two elements, viz., deceit and injury. A
person is said to deceive another when by practising
suggestio falsi or suppressio veri or both, he intentionally
induces another to believe a thing to be true. "Injury" defined
in Section 44 of IPC means any harm whatever illegally
caused to any person in body, mind, reputation and property.
In the decision reported in [1976 CrLJ 913 (SC) : 1976 Cr LR
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(SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman
Singh v. Delhi Administration, the Apex Court held that
whenever the words "fraud" or "intent to defraud" or
"fraudulently" occur in the definition of a crime, two elements
at least are essential to the commission of the crime; namely,
firstly, deceit or an intention to deceive or in some cases
mere secrecy; and, secondly, either actual injury or possible
injury or an intent to expose some person either to actual
injury to a risk of possible injury by means of that deceit or
secrecy. Where the accused prepared a false travelling
allowance bill, presented it to a sub-treasury and withdrew
the amount, it meant securing an advantage by deceitful act
and causing corresponding loss to the State. The offence will
fall under section 477A and the fact that the accused
subsequently paid over the entire amount is not a matter to
be considered.
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32. As per Section 13(1)(c) and (d) of the PC Act,
1988, a public servant is said to come under the offence of
`criminal misconduct', if he dishonestly or fraudulently
misappropriates or otherwise converts for his own use any
property entrusted to him or under his control as a public
servant or allows any other person so to do; or if he,-- (i) by
corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or (ii) by
abusing his position as a public servant, obtains for himself
or for any other person any valuable thing or pecuniary
advantage; or (iii) while holding office as a public servant,
obtains for any person any valuable thing or pecuniary
advantage without any public interest.
33. Similarly, use of forged documents as genuine
would attract penal consequence under Section 471 of IPC.
Therefore, the contention raised by the learned counsel for
the appellant that no attempt was made to obtain expert
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opinion in this case is of no significance, since by substantive
evidence, the prosecution case is proved beyond reasonable
doubt with the aid of Section 47 of the Evidence Act, 1872.
Even though it is argued by the learned counsel for the
accused/appellant that maintenance of a passbook showing
the remittance of the actual amount also was a practice, as
stated by PW2 and PW7, in fact, the evidence available
would show that such a practice was not followed in relation
to the amounts misappropriated and that is the reason why
the prosecution could not seize any passbooks. In fact, in the
instant case, it has been established that the accused himself
prepared Ext.P27 series and Ext.P37 series as well as
Ext.P50 series documents and he had no explanation
regarding what happened to the amounts actually he got
custody, though he failed to remit the entire amount, as
discussed herein above. Therefore, this contention of feeble
nature would not serve any purpose and the same is
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negatived. Thus, none of the contentions raised by the
learned counsel for the accused to assail the common verdict
found acceptable and the resultant outcome is that the
conviction found to be sustainable and thus the same does
not require any interference.
34. Coming to the sentence, taking note of the facts of
the case involved and the plea raised by the learned counsel
for the accused to reduce the sentence, I am inclined to
modify the sentence.
35. In the result, these appeals are allowed in part.
Conviction imposed by the special court for the offences
punishable under Section 13(2) r/w Section 13(1)(c) and
13(1)(d) of the PC Act, 1988 as well as under Sections 409,
420, 465, 468, 471 and 477A of IPC in both cases is
confirmed. The sentence is interfered and modified as under:
a) He shall suffer rigorous imprisonment for two
years and to pay a fine of ₹80,000/- (Rupees
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eighty thousand only) and, in default of payment
of the fine, he shall undergo rigorous
imprisonment for six months for offence under
Section 13(2) r/w 13(1)(c) of the P.C. Act.
b) He shall suffer rigorous imprisonment for two
years and to pay a fine of ₹80,000/- (Rupees
eighty thousand only) and, in default of payment
of the fine, he shall undergo rigorous
imprisonment for six months for offence under
Section 13(2) r/w 13(1)(d) of the P.C. Act.
c) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹10,000/- (Rupees Ten
thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 409 IPC.
d) He shall undergo rigorous imprisonment for one
year and to pay a fine of ₹10,000/- (Rupees Ten
thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 420 IPC.
e) He shall undergo rigorous imprisonment for six
months for offence under Section 465 IPC.
f) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹10,000/- (Rupees Ten
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thousand only) and, in default of payment of the
fine, to undergo rigorous imprisonment for two
months for offence under Section 468 IPC.
g) He shall undergo rigorous imprisonment for six
months for offence under Section 471 IPC
h) He shall undergo rigorous imprisonment for one
year for offence under Section 477A IPC
i) The substantial sentences of imprisonment shail
run concurrently.
j) The period of detention, if any, undergone by the
accused during the investigation, inquiry or trial of
this case, shall be set off against the term of
substantive sentences of imprisonment.
C.C. 19/2009:-
a) He shall suffer rigorous imprisonment for two
years and to pay a fine of ₹ 1,20,000/- (Rupees
one lakh twenty thousand only) and, in default of
payment of the fine, he shall undergo rigorous
imprisonment for eight months for offence under
Section 13(2) r/w 13(1)(c) of the P.C. Act.
b) He shall suffer rigorous imprisonment for two
years and to pay a fine of ₹ 1,20,000/- (Rupees
one lakh twenty thousand only) and, in default of
payment of the fine, he shall undergo rigorous
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imprisonment for eight months for offence under
Section 13(2) r/w 13(1)(d) of the P.C. Act.
c) He shall undergo rigorous imprisonment for two
years and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment
of the fine, to undergo rigorous imprisonment for
three months for offence under Section 409 IPC.
d) He shall undergo rigorous imprisonment for one
year and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment
of the fine, to undergo rigorous imprisonment for
two months for offence under Section 420 IPC.
e) He shall undergo rigorous imprisonment for six
months for offence under Section 465 IPC.
f) He shall undergo rigorous imprisonment for one
year and to pay a fine of ₹20,000/- (Rupees
Twenty thousand only) and, in default of payment
of the fine, to undergo rigorous imprisonment for
three months for offence under Section 468 IPC.
g) He shall undergo rigorous imprisonment for six
months for offence under Section 471 IPC.
h) He shall undergo rigorous imprisonment for one
year for the offence under Section 477A IPC.
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i) The substantial sentences of imprisonment shall
run concurrently.
j) The period of detention, if any, undergone by the
accused during the investigation, inquiry or trial of
this case, shall be set off against the term of
substantive sentences of imprisonment.
36. The orders suspending sentence and granting bail
to the accused stand cancelled and the bail bonds executed
by the accused also stand cancelled. The 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
nkr
