Kerala High Court
K.K.Mohandas vs State Of Kerala on 10 February, 2025
2025:KER:11335
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
CRL.A NO.622 OF 2007
AGAINST THE ORDER IN CC NO.13 OF 2001 ON THE FILE OF OF
COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THRISSUR(VC13/1997 OF VACB, THRISSUR)
APPELLANT/ACCUSED:
K.K.MOHANDAS
U D CLERK, KUNNAMKULAM MUNICIPALITY,
RESIDING AT AIKKARA HOUSE, KURUCHI VILLAGE,
CHANGANASSERY THALUK.
BY ADV.
V.A.AJIVAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
VACB, THRISSUR, REPRESENTED BY THE PUBLIC
PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
PUBLIC PROSECUTOR
AMT REKHA S, SR PP
SRI DHERAJ RAJAN, AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.02.2025, ALONG WITH CRL.A.623/2007, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:11335
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Crl.Appeal Nos.622 and 623 of 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
CRL.A NO.623 OF 2007
AGAINST THE ORDER IN CC NO.12 OF 2001 ON THE FILE OF COURT OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR (VC13/1997
OF VACB, THISSUR)
APPELLANT/ACCUSED:
K.K. MOHANDAS
UD CLERK, KUNNAMKULAM MUNICIPALITY,
RESIDING AT AIKKARA HOUSE, KURUCHI VILLAGE,
CHANGANASSERY THALUK.
BY ADV.
V.A.AJIVAS
RESPONDENTS/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY SUPERINTENDENT OF POLICE, VACB,
THRISSUR, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2025, ALONG WITH CRL.A.622/2007, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:11335
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Crl.Appeal Nos.622 and 623 of 2007
P.G. AJITHKUMAR, J.
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Crl.Appeal Nos.622 and 623 of 2007
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Dated this the 10th day of February 2025
JUDGMENT
These are appeals against conviction. The appellant was tried
by the Enquiry Commissioner and Special Judge, Thrissur in two
cases, namely, C.C.Nos.12 of 2001 and 13 of 2001. Common are
the offences alleged which are punishable under Sections 13(1)(c)
and (d) read with 13(2) of the Prevention of Corruption Act, 1988
(PC Act) and Sections 409, 420, 468, 471 and 477A of the Indian
Penal Code, 1860 (IPC). In both, the appellant was convicted for
all those offences and sentenced. Except for the offence
punishable under Section 471 of the IPC, the appellant was
awarded sentence of various terms of imprisonment and also fine.
The terms of the substantive sentence in each case were ordered
to run concurrently.
2. The appellant was an Upper Division Clerk (U.D. Clerk)
in Kunnamkulam Municipality. The period of the offence is
03.01.1996 to 06.07.1997. On detecting the misappropriation of
money by the appellant, a crime was registered and after
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investigation, two final reports were filed. Since the period during
which various instances of the offences sprawled beyond the
period of one year, two cases were instituted.
3. The case of the prosecution is the following:
The appellant was a U.D. Clerk in the Kunnamkulam
Municipality. Being such a public servant, he during the period
from 03.01.1996 and 06.07.1997 received various amounts
towards licence fees, premium, electricity charges, etc. and he
misusing his official position fraudulently misappropriated such
sums. Thereby the Municipality sustained a loss of Rs.1,21,784/-
While receiving such sums he had issued forged receipts also. By
doing those acts he committed offences punishable under Sections
13(1)(c) and (d) read with Section 13(2) of the PC Act and
Sections 409, 420, 468, 477 A and 471 of the IPC.
4. When charges were framed and read over, the
appellant pleaded not guilty. Hence, the prosecution has examined
PWs 1 to 21 and proved Exts.P1 to P96. On the closure of the
prosecution evidence, the appellant was questioned under Section
313(1)(b) of the Code of Criminal Procedure, 1973 (Code). He
denied all the incriminating circumstances that appeared against
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him in evidence. He further stated that he was innocent. No
defence evidence was let in. The Special Court, after considering
the evidence in detail, found the appellant guilty of all the offences
with which he was charged. That resulted in his conviction and the
sentence. The said conviction and sentence are under challenge
in these appeals filed under Section 374(2) of the Code.
5. Since the learned counsel, who filed the appeal
reported no instruction, notice was sent to the appellant to appear
in court. He accordingly appeared before this Court on 25.11.2020
and submitted a request to get appointed a legal aid counsel. He,
however, did not furnish any document enabling the High Court
Legal Services Committee to appoint a legal aid counsel. Hence,
on 30.05.2023, this Court appointed Advocate Dheeraj Rajan as
Amicus Curiae to appear on behalf of the appellant.
6. Heard the learned Amicus Curiae and the learned
Senior Public Prosecutor.
7. The fact that the appellant was working as a U.D.Clerk
in the Angamaly Municipality is not a disputed fact. However, the
prosecution has adduced sufficient evidence to establish the said
fact, both oral and documentary. PW3 was the Secretary of the
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Municipality during 1997. He as well as other members of the
staff, namely, PW8, PW9, PW12 and PW13 also deposed about
that fact. On the premises that he was an employee in the
Kunnamkulam Municipality, sanction for prosecuting him was
obtained from the Director of Municipal Administration. After
verifying the records, Ext.P1 sanction was issued which was duly
proved by PW1. From the aforesaid evidence, it is proved that the
appellant was working as a U.D.Clerk from 03.01.1996 to
06.07.1997 in Kunnamkulam Municipality and sanction to
prosecute him was duly issued.
8. The crux of the allegation is that the appellant, while
working as a public servant, received various amounts from PWs
4, 6 and 7 towards license fees, premium, etc. in respect of
various rooms belonging to the Municipality which were given on
license to various persons. He encashed electricity charges by
preparing contingent bills, Exts.P26 and P27 for two months; each
for Rs.4,841/-. PW3 deposed that the appellant failed to pay that
amount towards electricity charges of the Municipality. He
consciously omitted to remit those amounts to the Electricity
Board. He had thus collected Rs.1,21,784/- and misappropriated
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that amount. Since he misused his official power to collect and
misappropriate such amounts he is said to have committed the
offence under Sections 13(1)(c) and (d) of the PC Act. The further
allegation of the prosecution is that in order for collecting various
amounts he has issued forged receipts and failed to make
necessary entries in the relevant registers maintained in the
Municipality. Criminal misappropriation of funds, creation of false
documents, defalcation of accounts and cheating are thus alleged
against him.
9. PW4 deposed before the court that she was in
occupation of five rooms belonging to Kunnamkulam
Municipality. One of the said rooms was availed in the name of his
son, PW5. According to the prosecution, she paid various amounts
towards license fees in the Municipality and the same were
collected by the accused. But she did not support the case of the
prosecution that the accused had collected money from her. PW5,
on the other hand, deposed to the effect that the appellant had
collected all the payments and issued the receipts, which are
Exts.P4, P5, P6 and P7. The receipts issued for collecting those
amounts were proved to be in the handwriting of the appellant as
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well. From those documents, Exts.P4 to 7 it has been proved that
it was the appellant who collected money from PW4.
10. PW6 is a person conducting business in a building of
the Kunnamkulam Municipality. It is his case that he entrusted
Rs.38,000/- towards security amount with the appellant,
regarding which Ext.P59 receipt was issued. He later remitted
Rs.32,500/- for which Ext.P60 receipt was issued. The
handwritings in the receipts were identified by him as that of the
appellant. PW8, who was a colleague of the appellant, also
identified handwritings in those receipts. By the said evidence, it is
proved that Rs.38,000/- on 13.01.1997 and Rs.32,500/- on
17.01.1997 were collected by the appellant from PW6.
11. PW7 was conducting a Kuri company in shop No.7
belonging to Kunnamkulam Municipality. He availed that room
from the original tenant, Mrs.Kalyani, under an agreement and
Power of Attorney. PW7 deposed before the court that he remitted
license fees for the room from January 1996 to June 1997. He
thus paid a total amount of Rs.68,000/-. Exts.P8 to 24 are the
receipts issued by the appellant for the collection of the said
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amount. These receipts were also duly proved by evidence of PW7
and PW8.
12. PW13 was working as a Cashier of Kunnamkulam
Municipality during 1996-97. His evidence would show that an
amount of Rs.9,682/- was encashed by the appellant for payment
of electricity charges. His oral testimony concerning entrustment
of that amount with the appellant is not supported by any
documentary evidence, but there is evidence to show that such an
amount was drawn by the appellant. His version is that the
appellant received that amount but he did not make payment of
the electricity charges instead, he misappropriated that amount.
13. The evidence of those witnesses along with the oral
testimonies of the successive Secretaries of the Municipality,
members of the staff and officials from the bank, where the
amounts were to be remitted, have been relied on by the
prosecution to establish that the appellant has misappropriated an
amount of Rs.1,21,784/-. As stated, PW4 did not support the case
of the prosecution, but through the evidence of PW5 and the
receipts entrustment of various amounts with the appellant by her
and PW5 has been proved. Receipt of amounts from the other
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witnesses, namely PWs 6 and 7 also has been duly proved by both
oral and documentary evidence.
14. Insofar as the amounts said to have been drawn by the
appellant towards electricity charges of Rs.9,682/-there is enough
evidence. Hence entrustment of that amount can also be found.
The trial court after considering the evidence in detail came to the
conclusion that entrustment of an amount of Rs.1,12,102/-
towards license fees, premium etc, and electricity charges of
Rs.9,682/- was duly proved. I find no reason to interfere with
that finding of the Special Court.
15. The Apex Court in Bhargavan Pillai (Dead) by LRs.
v. State of Kerala [(2004) 13 SCC 217] held that once
entrustment is proved, it is for the accused to explain how the
property entrusted has been dealt with. Actual mode of
entrustment or misappropriation need not necessarily be
proved by the prosecution. Therefore the appellant is obliged to
explain that the amount entrusted with him was duly appropriated
by him. Since the amounts collected by him was never remitted,
the appellant cannot contend that on account of some mistake or
inadvertence, non-remittance occurred.
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16. The entrustment of such an amount with the appellant
has been duly proved. The prosecution has made every endeavour
to substantiate that the amount collected by the appellant was not
remitted with the designated accounts. Of course, only negative
evidence is possible concerning non remittance. In the absence of
any evidence on the part of the appellant that such amounts were
duly appropriated, applying the law laid down in Bhargavan Pillai
(supra) it can be held that he had misappropriated the said
amount.
17. As rightly pointed out by the learned Amicus Curiae,
receipts particularly Exts.P4 to P24 were issued by the appellant
making use of the unused receipts maintained in the
Kunnamkulam Municipality. Of course, the appellant issued such
receipts with dishonest intention. But those are not forged
documents. When the genuine forms were used to issue receipts
against collection of amounts due to the Municipality it cannot be
said that an offence of making false documents had been
committed. For that reason itself, an offence of using forged
documents cannot also sustain against the appellant. In Delhi
Race Club (1940) Ltd and others v. State Of Uttar Pradesh
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Crl.Appeal Nos.622 and 623 of 2007
and another [AIR 2024 SC 4531] it was held that one of the
essential ingredients of an offence of cheating is fraudulent or
dishonest inducement to deliver any property. Although the
appellant received money from different persons, the same was
not pursuant to any inducement. All payments were voluntary.
Therefore, the appellant is not liable for conviction for the offence
punishable under Section 420 of the IPC also. However, the other
offences namely, offences under Sections 13(1)(c) and (d) of the
PC Act, and Sections 409, 420 and 477A of the IPC are duly
proved.
18. Therefore, the findings of the trial court are modified.
Conviction of the appellant for the offences under Sections 420,
468 and 471 of the IPC is set aside. Conviction for the offences
punishable under Sections 13(1)(c) and (d) read with 13(2) of the
PC Act and Sections 409 and 477A of the IPC is confirmed.
19. Coming to the sentence, a few factors are relevant. The
incident occurred during 1996 and 97. Much time has been taken
to conclude the proceedings. The appellant is now aged 71 years.
It is seen that he is a person living in penury. Taking all such
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aspects into account, I am of the view that the sentence is liable
to be modified and reduced.
20. Accordingly, the appellant is sentenced to undergo
rigorous imprisonment for a period of one year and to pay a fine
of Rs.10,000/- with a default sentence of rigorous imprisonment
for a period of three months for the offence punishable under
Section 13(2) of the PC Act and to undergo rigorous imprisonment
for a period of one year and to pay a fine of Rs.5,000/- with a
default sentence of rigorous imprisonment for a period of one
month each for the offences under Section 409 and 477A of the
IPC.
Terms of substantive sentence imposed for all the offences
shall run concurrently. Also the terms of substantive sentence in
both cases shall run concurrently as provided in Section 427 of the
Code.
Sd/-
P.G. AJITHKUMAR
JUDGE
PV
