Kerala High Court
M.K.Velayudhan vs State Of Kerala on 11 February, 2025
2025:KER:11382
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL.APPEAL NO. 666 OF 2006
AGAINST THE JUDGMENT DATED 25.02.2006 IN CC NO.28 OF 2000
OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE.
APPELLANT/ACCUSED:
M.K.VELAYUDHAN
S/O.KUNHI, RAJALAKSHMI HOUSE,, PUTHUPPADY,
KOZHIKODE DISTRICT, (VILLAGE OFFICER,
PUTHUPPADY VILLAGE).
BY ADVS.
K.RAMAKUMAR (SR.)
C.DINESH
S.M.PRASANTH
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
2 THE DEPUTY SUPERINTENDENT OF POLICE
KOZHIKODE.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
2025:KER:11382
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Crl.Appeal Nos.666, 667 and 670 of 2006
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 22.01.2025, ALONG WITH CRL.A.667/2006,
670/2006, THE COURT ON 11.02.2025 DELIVERED THE
FOLLOWING:
2025:KER:11382
3
Crl.Appeal Nos.666, 667 and 670 of 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL. APPEAL NO. 667 OF 2006
AGAINST THE JUDGMENT DATED 25.02.2006 IN CC NO.29 OF 2000
OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE.
APPELLANT/ACCUSED:
M.K.VELAYUDHAN
S/O.KUNHI, RAJALAKSHMI HOUSE,, PUTHUPPADY,
KOZHIKODE DISTRICT,, (VILLAGE OFFICER,
PUTHUPPADY VILLAGE).
BY ADVS.
K.RAMAKUMAR (SR.)
C.DINESH
S.M.PRASANTH
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA,, ERNAKULAM.
2 THE DEPUTY SUPERINTENDENT OF POLICE
KOZHIKODE.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
2025:KER:11382
4
Crl.Appeal Nos.666, 667 and 670 of 2006
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 22.01.2025, ALONG WITH CRL.A.666/2006 AND
CONNECTED CASES, THE COURT ON 11.02.2025 DELIVERED THE
FOLLOWING:
2025:KER:11382
5
Crl.Appeal Nos.666, 667 and 670 of 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL. APPEAL NO. 670 OF 2006
AGAINST THE JUDGMENT DATED 25.02.2006 IN CC NO.30 OF 2000
OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE.
APPELLANT/ACCUSED:
M.K.VELAYUDHAN
RAJALAKSHMI HOUSE, PUTHUPPADY, KOZHIKODE
DISTRICT, (VILLAGE OFFICER, PUTHUPPADY
VILLAGE).
BY ADVS.
K.RAMAKUMAR (SR.)
AMMU CHARLES
C.DINESH
S.M.PRASANTH
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
2 THE DEPUTY SUPERINTENDENT OF POLICE
KOZHIKODE.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
2025:KER:11382
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Crl.Appeal Nos.666, 667 and 670 of 2006
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 22.01.2025, ALONG WITH CRL.A.666/2006 AND
CONNECTED CASES, THE COURT ON 11.02.2025 DELIVERED THE
FOLLOWING:
2025:KER:11382
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Crl.Appeal Nos.666, 667 and 670 of 2006
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.666, 667 and 670 of 2006
-----------------------------------------------------------
Dated this the 11th day of February, 2025
JUDGMENT
The appellant was the Village Officer, Puthuppady Village
during the period from 28.09.1994 to 18.06.1996. Alleging that
he misappropriated various amounts remitted by PWs.1 to 5 in
respect of revenue recovery proceedings, a crime was registered.
After investigation, various instances of such criminal
misappropriation by the petitioner misusing his official power
were revealed. That resulted in the filing of three final reports.
C.C.Nos.28, 29 and 30 of 2000 were thereby instituted in the
Court of the Enquiry Commissioner and Special Judge, Kozhikode.
A joint trial was held. The Special Court convicted and sentenced
the appellant in each of the said three cases. Assailing the said
judgments of conviction and sentence, these appeals were filed
invoking the provisions of Section 374(2) of the Code of Criminal
Procedure, 1973 (Code).
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Crl.Appeal Nos.666, 667 and 670 of 2006
2. The allegations are that while remitting various
amounts in respect of the revenue recovery proceedings by
various persons, the petitioner in the capacity of the village
officer used to issue receipts in the prescribed form. He,
however, did not remit the entire amount to the bank
concerned. Portions of such amounts he received from PWs.1
to 5 in connection with the respective revenue recovery files
were misappropriated by the petitioner. The details of such
collection and misappropriation are tabulated below:
Crl.Appeal C.C.No. Amounts Amount Amount The person who paid the
No. collected remitted in misappropriat sum
the bank ed
666/2006 28/2000 Rs.2,400/- Rs.425/- Rs.1,975/- V.Sreedharan Nair (PW1)
667/2006 29/2000 Rs.1,25,019/- Rs.6,408/- Rs.1,18,611/- Abdurahiman (PW2)
John Michel (PW4)
670/2006 30/2000 Rs.8,589/- Rs.547/- Rs.8,042/- V.P.Damodaran (PW3)
C.J.Mathew (PW5)
3. The Special Court framed charges against the
appellant in each of the cases for the offences punishable
under Sections 13(1)(c) and 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act, 1988 (PC Act) and
Sections 409, 420, 468 and 477A of the Indian Penal Code,
1860 (IPC). On the appellant pleading not guilty, the
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Crl.Appeal Nos.666, 667 and 670 of 2006
prosecution has examined PWs.1 to 20 and proved Exts.P1 to
P113. During the examination under Section 313(1)(b) of the
Code, the appellant denied all the incriminating circumstances
appeared against him. He maintained that he did not commit
misappropriation of any amount. He added that the case was
foisted against him. No defence evidence was let in.
4. The trial court, after considering the evidence in
detail, found the appellant guilty of all the offences to which he
was charged. On conviction, he was sentenced in each of the
cases to undergo rigorous imprisonment for a period of one year
and to pay a fine of Rs.2000/- under Section 13(1)(c) and 13(1)
(d) r/w 13(2) of the PC Act and rigorous imprisonment for a
period of one year each and a fine of Rs.1,000/- each under
Sections 409, 420, 468 and 477A of the IPC. The terms of
substantive sentence were ordered to run concurrently.
5. Heard the learned Senior Counsel, appeared on
instructions, for the appellant and the learned Senior Public
Prosecutor and the learned Special Public Prosecutor
(Vigilance).
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Crl.Appeal Nos.666, 667 and 670 of 2006
6. The case of the prosecution is that while working
as the Village Officer, Puthuppady Village the appellant
committed the charged offences. The fact that the appellant
was the Village Officer, Puthuppady Village from 28.09.1994
to 18.06.1996 is borne by records. Ext.P39 is the attendance
register for the year 1995 in that village office. His attendance
during the year 1995 in the office is reflected from the said
register. Ext.P84 attendance register for the year 1996 proved
his attendance in 1996. Evidence of PW6, a Junior
superintendent, is also available in that regard. The appellant
does not deny these facts as well. In the circumstances, it
stands proved that the appellant was the Village Officer of
Puthuppady Village during the relevant period.
7. The prosecution has adduced both oral and
documentary evidence to prove that various amounts were
collected towards revenue recovery arrears from PWs.1 to 5.
These witnesses deposed before the court regarding the
proceedings initiated against them for recovery of amounts
due in their loan accounts, through revenue recovery
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Crl.Appeal Nos.666, 667 and 670 of 2006
proceedings. (PW4 is the authorised representative of the
loanee.) The corresponding receipts were seized by the
prosecution and produced before the court. Exts.P3, P4, P5,
P7, P9, P10, P13, P14, P18 and P19 are various receipts. The
authorship of the receipts is established. PW6, the Junior
Superintendent in the village office deposed substantiating
that fact. Further, Exts.P21, P22 and P23, which are cash
books (volumes II, III and IV) maintained in the village office
during the relevant period, carry necessary entries regarding
the collection of those amounts. The relevant entries in
Ets.P21, 22 and 23 were duly proved and marked as separate
exhibits. When a colleague officer of the appellant deposed
about those facts and the document carry the initials of the
appellant concerning collection of such amounts, the
conclusion is irresistible that the amounts in question were
collected by the appellant in the capacity of Village Officer,
Puthuppady Village.
8. In order to prove short remittance of the amounts
collected by the appellant, managers and staff members of
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Crl.Appeal Nos.666, 667 and 670 of 2006
the Canara Bank, Adivaram Branch and State Bank of
Travancore, Balussery Branch were examined. They are PW8,
PW10, PW11, PW12, PW13 and PW15. Various pay-in-slips as
per which the appellant made remittances of different
amounts corresponding to the revenue recovery proceedings
initiated against PWs.1 to 5 were produced and proved. There
can be no reason to disbelieve their evidence. Their oral
evidence and the documents they proved along with the
evidence of PW7, Deputy Collector, who deposed about the
procedure for collection and remittance of revenue recovery
arrears proved beyond doubt the short remittances of
amounts collected by the appellant.
9. The Special Court followed the law laid down by the
Apex Court in Bhargavan Pillai (Dead) by LRs. v. State of
Kerala [(2004) 13 SCC 217 : 2004 (2) KLT 725] 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. In view of that, the appellant
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Crl.Appeal Nos.666, 667 and 670 of 2006
cannot be heard to contend that there was no entrustment of
the money he has collected from PWs.1 to 5. When the entire
amounts so collected were not remitted by the appellant in
the respective banks, the burden of proof as to what way the
reminder has been appropriated is on the appellant. Various
amounts collected by the appellant and the amounts actually
remitted in the banks have been duly proved. While
Rs.1,25,019/- was collected by the appellant from PWs.1 to 5,
he remitted only Rs.6,408/- in the bank or the treasury. When
an amount is collected under a revenue recovery certificate,
the recovery charges are to be remitted in the treasury and
the loan amount in the bank. Here, the short remittance was
Rs.1,18,611/-. Since there is absolutely no explanation from
the appellant for his failure to remit the said amount, the
irresistible conclusion is that he has misappropriated that
amount.
10. The learned Senior Counsel for the appellant
submitted that the appellant has remitted the entire amount
subsequently and what occurred was only a procedural
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Crl.Appeal Nos.666, 667 and 670 of 2006
irregularity. It is submitted that on account of the delay in
making payment alone, the appellant cannot be convicted for
the offences of criminal breach of trust, misappropriation or
cheating.
11. The appellant filed Crl.M.A.No.1 of 2022 in
Crl.Appeal No.666 of 2006 producing therewith a receipt
dated 17.04.2013 issued from the office of the Tahsildar
(Revenue Recovery), Kozhikode. The said receipt would show
that the appellant remitted Rs.1,24,119/-. Obviously, the said
payment was against the amount involved in these cases. It is
contended that in the light of such remittance, conviction of
the appellant cannot be justified in law. In this regard, the
learned Senior counsel placed reliance on Surendran Nair v.
State of Kerala [2023 KHC OnLine 10685].
12. The learned Senior Counsel further would submit
that dishonest intention to misappropriate the amount by
converting the same for his own use should be established for
a conviction for the offence of criminal misappropriation and
breach of trust. Here, retention of the money for a particular
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Crl.Appeal Nos.666, 667 and 670 of 2006
period alone happened and therefore the conviction of the
appellant is incorrect. In this respect the learned Senior
Counsel placed reliance on Thankappan v. State of Kerala
[1965 KLT 501], Mohanan P.P. v. State of Kerala [2016
(4) KHC 180] and Illiyas N.K. v. State of Kerala [(2012)
12 SCC 748].
13. A learned Single judge of this Court in Surendran
Nair (supra) held that in the absence of any material
disclosing element of corruption or pecuniary loss, at the best,
it could be stated that the act of the accused would amount to
a procedural irregularity. Merely because the amount was not
re-paid or there was irregularity in the procedure adopted in
depositing the amount, it cannot be said that any criminal
offence is attracted.
14. In this case, the appellant retained the amount
collected during the years 1995 and 1996 till 2013. As held in
Bhargavan Pillai (supra), the appellant is obliged to
explain that the amount entrusted with him was duly
appropriated by him. If the amounts were remitted soon or
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Crl.Appeal Nos.666, 667 and 670 of 2006
within a reasonable time, the appellant would have been
justified in contending that on account of some mistake or
inadvertence, non-remittance occurred. Distinguishably, the
appellant retained the amount in question for years together.
Therefore, a contention that there occurred only a procedural
irregularity or inadvertent omission on the part of the
appellant cannot be countenanced.
15. In Thankappan (supra), the accused retained
money for 22 days. Taking that into account and the
circumstances therein, it was held that Section 106 of the
Evidence Act could not be resorted to cast burden on the
accused. It was further held that no dishonest intention to
misappropriate and use the amounts for own use of the
accused could not be inferred in that case. Similar were the
facts of and the law laid down in Mohanan P.P. and Illiyas
N.K. (supra). The Apex Court in Illiyas N.K. held that the
proved facts would only show that a temporary embezzlement
of an amount of Rs.1839/- and as the said amount was
deposited by the accused within the due date itself, the act
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Crl.Appeal Nos.666, 667 and 670 of 2006
was treated as a trivial one coming within Section 95 of the
IPC. Those principles are not of avail to the appellant
inasmuch as he as a Village Officer failed to deposit the
amount he had collected, and he retained the amount for
years together. Only after the lapse of several years and
initiation of the prosecution, the appellant has remitted the
amount. In such circumstances, I am unable to accept the
contention of the appellant in this regard.
16. The learned Counsel further would submit that
fraudulent intention to misappropriate the amount by the
accused should be established for a conviction for the offence
of cheating. Here, retention of the money was for a certain
period alone and the appellant therefore the conviction of the
appellant is incorrect
17. The further submission of the learned Senior
Counsel that the proved facts do not make out an offence of
cheating, since there was no false or fraudulent inducement
resulting in payment of the amounts by PWs.1 to 5. Inasmuch
as the payments were voluntary, illegal retention of such
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Crl.Appeal Nos.666, 667 and 670 of 2006
amounts is not enough to constitute an offence of cheating as
defined in Section 415 of the IPC. Therefore, conviction of the
appellant for the offence under Section 420 of the IPC is
wrong and liable to be set aside. However, his conviction for
the other offences, namely, Sections 409, 468 ad 477A of the
IPC and Sections 13(1)(c) and 13(1)(d) read with Section
13(2) of the PC Act are liable to be confirmed in all the three
cases. I do so.
18. The Special Court imposed only the minimum term
of imprisonment prescribed for the offence under Section 13(2)
of the PC Act. The same term of imprisonment has been
imposed for other offences also. When the terms of substantive
sentence are ordered to run concurrently, there is no reason to
interfere with the sentence. Therefore, I refrain from interfering
with the sentence imposed on the appellant; both imprisonment
and fine, in each of the three cases. However, I order that the
appellant need to suffer various terms of substantive sentence
imposed in all the three cases concurrently in terms of the
provisions of Section 427 of the Code.
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Crl.Appeal Nos.666, 667 and 670 of 2006
The appeals are allowed in part to the extent indicated
above.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
