Kerala High Court
P.T.Mathai vs State Of Kerala on 19 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA,
1946
CRL.APPEAL NO. 636 OF 2008
AGAINST THE JUDGMENT DATED 29.02.2008 IN CC NO.43 OF 2003
OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
P.T.MATHAI
FORMERLY SECRETARY, GOVERNMENT SERVANTS
CO-OPERATIVE SOCIETY, LTD.NO.Q.169, MANTHUKA,
PATHANAMTHITTA.
BY ADVS.
SRI.B.KRISHNA KUMAR
SRI.DINESH THANKAPPAN
SRI.A.CHANDRA BABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI-31.
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Crl.Appeal No.636 of 2008
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Crl.Appeal No.636 of 2008
P.G. AJITHKUMAR, J.
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Crl.Appeal No.636 of 2008
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Dated this the 19th day of February, 2025
JUDGMENT
The appellant was the accused in C.C.No.43 of 2003 on
the files of the Court of Enquiry Commissioner and Special
Judge, Thiruvananthapuram. He was tried on a charge for
offences punishable under Sections 13(1)(c) and (d) read with
Section 13(2) of the Prevention of Corruption Act, 1988 (PC
Act) and Sections 409, 420, 468 and 471 of the Indian Penal
Code, 1860 (IPC). The Special Court convicted the appellant
for all those offences and sentenced him to undergo
imprisonment and pay fine. The said judgment of conviction
and sentence is under challenge in this appeal filed under
Section 374(2) of the Code of Criminal Procedure, 1973
(Code).
2. The prosecution was initiated based on the
allegation that while the appellant was working as the
Secretary of the Government Servants Co-operative Bank Ltd.
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No.Q.169, Manthuka, by misusing his position as a public
servant, created false documents and disbursed three loans
each for Rs.20,000/-, in the names of PWs.1, 2 and 11. Those
loan amounts were not disbursed to the loanees, instead the
amounts were misappropriated by the appellant. Yet another
instance of misappropriation alleged is that he created false
documents for remittance of Rs.7,000/- against a gold loan
account in the name of his wife, PW19, and released the
pledged gold weighing 27 grams.
3. Based on the said allegations, a charge was framed
and read over. The appellant pleaded not guilty. Hence, the
prosecution has examined PWs.1 to 28 and produced Exts.P1
to P68. This case was tried along with C.C.Nos.45, 47 and 48
of 2003 of the Special Court, Thiruvananthapuram, since the
transactions were similar in nature, and the accused was
common. The Special Court, based on the said evidence,
convicted the appellant in all the four cases.
4. Heard the learned counsel for the appellant and the
learned Special Public Prosecutor (Vigilance).
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5. The appellant assails the impugned judgment on
various grounds. However, at the time of hearing, the learned
counsel for the appellant stressed mainly on the contention
that the offence under Sections 13(1)(c) and (d) read with
Section 13(2) of the PC Act is not established. The submission
of the learned counsel is that even admitting that the
appellant was the Secretary of the Government Servants
Co-operative Bank Ltd., Manthuka, the prosecution cannot
canvass for the position that he was a public servant coming
within the purview of Section 2(c) of the PC Act.
6. Clause (ix) of Section 2(c) of the PC Act takes in
its fold the president, secretary or other office-bearer of a
registered co-operative society engaged in agriculture,
industry, trade or banking, which is receiving or having
received any financial aid from the Central Government or a
State Government or from any corporation established by or
under a Central, Provincial or State Act. President, secretary
or other office-bearer of such a co-operative society alone is a
public servant for the purpose of the PC Act. The Apex Court
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in State of Maharashtra v. Brijlal Sadasukh Modani
[(2016) 4 SCC 417] held that even a sprinkle of aid to the
co-operative society is enough to bring an employee of the
co-operative society within the definition of 'public servant'.
7. There is no allegation in the final report or evidence
to prove that the Government Servants Co-operative Bank
Ltd. No.Q.169, Manthuka obtained or obtains any financial aid
from the Central Government or a State Government or from
any corporation established by or under a Central, Provincial
or State Act. Since the prosecution did not allege that the
Government Servants Co-operative Bank Ltd., Manthuka
obtained any aid from either the Central or State Government
and there is absolutely no evidence to prove the fact that the
conviction of the appellant for the offence punishable under
Sections 13(1)(c) and (d) read with Section 13(2) of the PC
Act is unsustainable.
8. Insofar as the offences of creating forged
documents for the purpose of providing loans in the proxy
names and to misappropriate the amounts of such loans,
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sufficient evidence has been adduced by the prosecution. The
documents pertaining to the loans were all in the handwriting
of the appellant. The authorship of such documents, and also
the official documents concerning the loan transactions in
question is not successfully challenged even. When, such
overwhelming evidence, both documentary and oral, is
available in order to prove that the loans in question were
disbursed but the loanees concerned namely, PWs.1, 2 and
11, did not receive any amount, the irresistible conclusion is
that the appellant misappropriated the said amounts. In the
circumstances, it can further be held that the documents in
relation to such loans, including the gold loan in the name of
his wife, were forged attracting penal provisions under
Sections 468 and 471 of the IPC. The findings of the Special
Court that the appellant has committed the offences
punishable under Sections 409, 420, 468 and 471 of the IPC
are therefore not liable to be interfered with.
9. Accordingly, the appellant is found not guilty and
acquitted of the offence punishable under Sections 13(1)(c)
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and (d) read with Section 13(2) of the PC Act. Consequential
sentence is set aside. His conviction for the offences under
Sections 409, 420, 468 and 471 of the IPC is confirmed.
10. The learned counsel for the appellant would submit
that the appellant suffered a stroke and had to undergo
treatment for a long period. He is now aged 74 years and
ailing of so many diseases. It is further submitted that a
major portion of the amount said to have been
misappropriated from the Co-operative Bank was repaid.
Moreover, the entire immovable property belonging to the
appellant has been kept under attachment. Accordingly, it is
submitted that there would not be any loss to the
Co-operative Bank.
11. The submission of the learned Special Public
Prosecutor is that the offence committed by the appellant is
very serious and involved several similar instances. Therefore,
there is no justification for any interference with the order of
sentence.
12. Having considered the facts and circumstances of
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the case, including the present age and physical condition of
the appellant, as are borne out from the records, I am of the
view that sentence imposed on the appellant can be modified
and reduced.
13. Accordingly, the appellant is sentenced to undergo
rigorous imprisonment for a period of six months each for the
offences under Sections 409, 420, 468 and 471 of the IPC. Besides
imprisonment, the appellant has to pay a fine of Rs.5,000/- with a
default sentence of two months under each of Sections 409, 420, 468
and 471 of the IPC. Terms of substantive sentence shall run
concurrently. Set off of the eligible period is allowed.
14. The appellant is convicted and sentenced in eight
cases, including the present one. The other cases are
C.C.Nos.44, 45, 46, 47 and 48 of 2003 of the Special Court,
Thiruvananthapuram and C.C.Nos.150 and 177 of 2003 of the
Chief Judicial Magistrate's Court, Pathanamthitta. The offences
involved in all these eight cases were committed while the
appellant was functioning as the Secretary of the Government
Servants Co-operative Bank Limited, Manthuka. Different final
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reports were filed with respect to distinct instances of
misappropriation. Since all the offences were committed by
the appellant in the capacity as Secretary of the said
Co-operative Bank and in quick succession, the offences form
part of a series of transactions.
15. The Apex Court in Mohanan Nair P.N. v. State of
Kerala [(2017) 14 SCC 719] held that when the allegations
constituted a single transaction between the same parties for
a block period, and split up by the prosecution, presumably
for its convenience, into different cases, it is appropriate to
order to run sentences imposed in all the cases concurrently,
invoking the provisions under Section 427(1) of the Code. A
similar view was taken by the Apex Court in Vicky @ Vikas v.
State (Govt. of NCT of Delhi) [(2020) 11 SCC 540] also.
Identical are the circumstances in these cases also. Therefore,
I am of the view that the said proposition can be applied to
these cases. Hence, it is ordered that the terms of substantive
sentence imposed on the appellant in this case and C.C.Nos.
44, 45, 46, 47 and 48 of 2003 of the Special Court,
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Thiruvananthapuram and C.C.Nos. 150 and 177 of 2003 of the
Chief Judicial Magistrate's Court, Pathanamthitta shall run
concurrently. The appellant shall appear before the Court of
Enquiry Commissioner and Special Judge, Thiruvananthapuram
on or before 21.04.2025 for undergoing sentence. That court
shall inform the Chief Judicial Magistrate, Pathanamthitta once
the appellant is committed to jail.
The appeal is allowed in part as above.
Sd/-
P.G. AJITHKUMAR, JUDGE
scl/dkr
