Kerala High Court
Gopalakrishna Kurup vs State Of Kerala on 20 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA,
1946
CRL.APPEAL NO. 2514 OF 2007
AGAINST THE JUDGMENT DATED 13.12.2007 IN CC NO.15 OF 2003
OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
GOPALAKRISHNA KURUP
FORMERLY CASHIER, KERALA STATE ELECTRICITY
BOARD, ARTHUNKAL.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,, ERNAKULAM.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
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Crl.Appeal No.2514 of 2007
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 14.01.2025, THE COURT ON 20.02.2025 DELIVERED
THE FOLLOWING:
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3
Crl.Appeal No.2514 of 2007
P.G. AJITHKUMAR, J.
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Crl.Appeal No.2514 of 2007
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Dated this the 20th day of February, 2025
JUDGMENT
The appellant was the sole accused in C.C.No.15 of 2003
on the files of the Court of Enquiry Commissioner and Special
Judge, Thiruvananthapuram. He was charged with 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 and 477A of the Indian Penal Code,
1860 (IPC). As per the judgment dated 13.12.2007, he was
convicted for the offences punishable under Sections 13(1)(c)
and 13(1)(d) read with Section 13(2) of the PC Act and
Section 409 of the IPC. He was sentenced to undergo rigorous
imprisonment for a period of one year for each of the said
offences. The terms of sentence were ordered to run
concurrently. 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).
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2. The case of the prosecution is the following:
The appellant was working as a Cashier at Arthunkal Section
of the Kerala State Electricity Board (KSEB) during the period
from 30.08.1995 to 31.12.1995. He was in charge of
Thiruvizha Centre. He allegedly had misappropriated an
amount of Rs.68,727/-, which he collected towards energy
charges from various consumers coming under LT-IV
connections. Since he did such a criminal misappropriation
misusing his position as a public servant, he is said to have
committed the aforementioned offences.
3. The Special Court framed a charge and read over
the same to the appellant. Since he pleaded not guilty, the
prosecution has examined PWs1 to 17 and proved Exts.P1 to
P45. During his examination under Section 313(1)(b) of the
Code, the appellant denied all the incriminating circumstances
that appeared against him in evidence. He further stated that
he had remitted the entire amount he had collected from the
consumers. Thus, he maintained that he was innocent.
Exts.D1 and D2 were marked on his side. The trial court, after
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considering the evidence that came on record, held that the
appellant misappropriated Rs.68,727/-. The finding was that
out of the said amount, the appellant did not pay at all
Rs.37,575/- till the misappropriation was detected in the
inspection conducted by PW8, the Accounts Officer on
01.01.1996 and 03.01.1996. However, in the case of the
remaining amount of Rs.31,152/-, there was only temporary
misappropriation, since the appellant remitted the amount in
bank after a few days of collection. The Special Court
accordingly concluded that the appellant committed the
offences under Sections 13(1)(c) and 13(1)(d) read with
Section 13(2) of the PC Act and Section 409 of the IPC. The
appellant assails the said findings in this appeal.
4. Heard the learned Senior Counsel, appeared on
instructions, for the appellant and the learned Special Public
Prosecutor (Vigilance).
5. The findings of the Special Court that the appellant
was working as a Cashier at the Arthunkal Section of the
KSEB from 30.08.1995 to 31.12.1995 and he was a public
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servant as defined in Section 2(c) of the PC Act is not
challenged. Ext.P13 is the sanction accorded by PW7, the
Chief Engineer on 22.01.2002 to prosecute the appellant.
Based on the evidence of PW7, it was held that there was a
valid sanction for prosecution of the appellant. The said
finding is devoid of any infirmity.
6. The findings of the Special Court that the appellant
was in charge of Thiruvizha Centre and various amounts
collected were misappropriated by him, are strongly assailed.
It is contended that the evidence is insufficient to find that the
appellant was in charge of Thiruvizha Centre in Arthunkal
Section of the KSEB during the relevant period. It is also
contended that when there were three Cashiers and each one
of them used to collect energy charges and issue receipts, the
entries concerning collection and remittances in Ext.P2, the
abstract of daily collection and remittance or entries in
Ext.P12 cash receipt statement are not sufficient evidence to
establish misappropriation. PW6 and PW9 were the other
Cashiers. Their evidence ought to have been approached with
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caution, but the Special Court placed undue reliance on their
evidence even disregarding the possibility of their failure to make
necessary remittances and their role in the misappropriation. The
failure to obtain a report of a Finger Print Expert is also
highlighted to urge that evidence was insufficient to implicate the
appellant to the offence.
7. PW8 was the Accounts Officer working in the Building
Supervision Unit at KSEB Office, Cherthala. Following some
complaints he conducted an inspection concerning collections of
energy charges at Thiruvizha Centre of KSEB office, Arthunkal.
The appellant was in charge of that Centre. Besides PW8, PW2,
the Assistant Engineer, PW6 and PW9, the other Cashiers,
deposed about the inspection conducted by PW8. Exts.P14 and
P15 are the reports prepared and submitted by PW8. It is stated
by PW8 and the other witnesses that the appellant was available
in the Arthunkal office while PW8 reached there and started
inspection. But he left the office in a short while after submitting
a leave application. PW8 verified the records concerning
collections and remittances with special reference to LT-IV
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connections coming under Thiruvizha Centre. In his verification
on 01.01.1996, five instances of non-remittance or delayed
remittance of collected amounts were found. The total amount of
non-remittance was Rs.22,763/-. On 03.01.1996, four more such
instances were detected. The total amount of non-remittance
was Rs.16,274/-.
8. PW2 deposed that the short remitted amount of
Rs.22,763/- detected in the inspection on 01.01.1996 was
handed over to him by one Sub Engineer Sri.Gopalan at about
4.00 p.m. on the same day stating that the same was
entrusted by the appellant. PW2 also deposed that after
inspection on 03.01.1996, the non-remitted amount of
Rs.16,274/- was entrusted with him by another Sub Engineer
Sri.Purushothama Panicker. The said amounts were duly
remitted in the bank account after obtaining necessary
permission from the authorities. According to the prosecution,
from the evidence of PW6, PW8 and PW9, coupled with
various entries in Exts.P2, P12 and P21, various demand
statements and receipts, collection by the appellant of the
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aforementioned amounts has been duly proved. PW6 and PW9
identified the handwritings of the appellant in various entries
in Exts.P2 and P12 as also the demand statements concerning
the amounts in question. Before considering whether the
prosecution was able to succeed in establishing the complicity
of the appellant in collection of the amounts in question and
retention of the same, I shall mention below the details of the
amounts collected, non-remittance/delay and so on and so
forth. Those details are tabulated below for easy reference:
Sl. Consu Month Bill Amount Relevant Entry Date of Details
No. mer demand regarding collection regarding
(Rs.)
No. stateme collection entry in cash
nt book
(Ext.P12)
1 1391 11/1995 Ext.P8 12799/- Ext.P19 Ext.P19(a) 30.11.1995 Not entered
2 1391 12/1995 Ext.P9 9589/- Ext.P20 Ext.P20(a) 27.12.1995 Not entered
3 2337 10/1995 765/- Ext.P18 Ext.P18(a) 27.10.1995 30.11.1995
4 1391 10/1995 Ext.P7 15016/- Ext.P18 Ext.P18(e) 27.10.1995 Not entered
5 889 9/1995 9191/- Ext.P17 Ext.P17(a) 29.09.1995 31.10.1995
6 1391 8/1995 Ext.P6 11591/- Ext.P16 Ext.P16(a) 30.08.1995 30.09.1999
7 3165 9/1995 408/- Ext.P17 Ext.P17(d) 30.09.1995 05.10.1995
8 889 8/1995 9197/- Ext.P16 Ext.P16(b) 30.10.1995 31.10.1995
(seen corrected)
9 2852 10/1995 171/- Ext.P18 Ext.P18(b) Not noted Not remitted
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9. In the inspection by PW8, nine instances of
misappropriation were detected. A detailed report regarding
the same is contained in Exts.P14 and P15. From the details
of such defalcation of accounts as narrated above, it can be
seen that Sl.Nos.1, 2, 4 and 9 were not remitted in the bank.
The procedure to be followed in the matter of collection of
energy charges concerning LT-IV connections has been
explained by PW8. Guidelines concerning cash transactions
and accounting are detailed in Ext.P36. Although the learned
Senior Counsel for the appellant urged that Ext.P36 cannot be
acted upon, I am unable to accept that contention in the light
of the assertion in that regard by PW8 and other witnesses.
10. After ascertaining the energy consumption, the
power charges would be calculated from the Electrical Major
Section and an invoice along with a pre-written receipt would
be prepared. The invoice would be sent to the consumer and
the pre-written receipt would be kept by the Cashier in the
Electrical Section. When the consumer remits the energy
charges, the Cashier endorses that fact and initials in the
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pre-written receipts before being issued to the consumer. On
collection of energy charges, the same shall be entered in the
cash book and remitted on the next day in the bank. Pay-in-
slips for each day would be initialed by the Cashier and kept
in the cash receipt statement. Therefore, in the pre-written
receipt issued to the consumer, original demand statements,
cash book and cash receipt statement there would be
necessary entries and initials of the cashier concerned.
11. PW2, PW6 and PW9 deposed that the appellant was
a cashier in charge of the Thiruvizha Centre in Arthunkal
Section, KSEB. Relevant entries in the original demand
statements, which are Exts.P16(a), P16(b), P17(a), P17(b),
P18(a), P18(e) and P20(a) and Ext.P12 cash receipt
statement vouchsafe that assertion. It has come out in
evidence that PW9 was not assigned with any Centre, but was
engaged for assisting the appellant and PW6, who was in
charge of Arthunkal Centre. In the above context, the learned
Senior Counsel appearing for the appellant submitted that the
possibility of PW9 collecting various amounts, including the
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amounts said to have been misappropriated cannot be ruled
out. The authorship of entries regarding collection of energy
charges concerning consumer No.1391 particularly, have been
specifically disputed by the appellant. PW9 admitted that
initials in Exts.P19(b) and P20(b) were of her. But those were
not subject matter of any defalcation. It is pertinent that
corresponding entries in the cash book, cash receipts
statements (Ext.P12 and the available pre-written receipts)
were stated to be that of the appellant. The other witnesses,
including PW2 and PW6, identified the handwriting and initials
in the relevant entries concerning the collection in question
appeared in those documents as that of the appellant as well.
PWs.3, 4 and 5 were examined to prove payment of energy
charges and receipt of the same by the appellant. But they did
not state implicating the appellant. Despite lack of their
evidence, there is enough evidence to prove the fact that the
appellant had collected the amounts in question. In the
circumstances, the aforesaid contention of the appellant
cannot be countenanced.
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12. It is true that no report of a Handwriting Expert is
available in order to fix the authorship of the entries in
question. PW2, PW6 and PW9 were colleagues of the appellant
for a long period. There is nothing on record to show that they
had reason to falsely implicate the appellant with the crime.
Rs.37,575/-, which were collected in a few instances,
remained unremitted with the bank even at the time of
inspection. It may be noted that following the inspection on
01.01.1996, an amount of Rs.22,763/-, which was found to
be short remittance was brought by one Sub Engineer,
Sri.Gopalan, and entrusted with PW2. Similarly, Rs.16,274/-,
which was found to be the short remittance in the inspection
on 03.01.1996 was brought by another Sub Engineer,
Sri.Purushothama Panicker and entrusted with PW2.
13. Whether or not the said amounts were entrusted
with the said Sub Engineers by the appellant is not supported
by any reliable evidence. Of course, while Sri.Purushothama
Panicker entrusting Rs.16,274/-, a request of the appellant to
receive the said amount was also given. What was available
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before the court was only a photocopy of such a request. The
Special Court did not receive the same in evidence. Therefore,
the contents of that request cannot be acted upon so as to tag
the appellant with such payments. But the facts remain that
immediately on detecting the short remittance, the amounts
due were paid. That certainly substantiated that such an
amount of Rs.35,575/- was misappropriated and not remitted
in the bank till detected in the inspection conducted by PW8.
That fact and also the delay occurred in remitting various
other amounts such as entries at Sl.Nos.3, 5, 6, 7 and 8 in
the tabular column, totalling Rs.31,152/- are sufficiently
proved. Lack of report of the Handwriting Expert does not
affect credibility of the said evidence. Therefore, the findings
arrived at by the Special Court that it was the appellant, who
committed misappropriation of an amount of Rs.68,727/-, is
supported by sufficient evidence and not liable to be
interfered with.
14. The learned Senior Counsel for the appellant
referred to the view taken by this Court in M.M.Vahab v.
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State of Kerala [2020 Crl.LJ (NOC) 356] in a similar
situation to contend that the charge against the appellant is
not proved. It was observed that what is punishable under
Sections 13(1)(c) and 13(1)(d) is an act of criminal misconduct
by which money was misappropriated from public funds by
the public servant, or he made unlawful gain or pecuniary
benefit by abusing his position as a public servant. After
adverting to the evidence in detail in that case, it was held
that such ingredients were not established. That was a view
taken based purely on the facts of that case. Therefore, the
said decision is not of avail to the help of the appellant.
15. The learned Senior Counsel further would submit
that there was only a temporary misappropriation. While there
were delay in payment for a few days in five instances, the
amount involved in the other four instances was paid
immediately after the inspection. Therefore, it cannot be said
that there was any dishonest intention for the appellant to
misappropriate the amount. The law laid down by the Apex
Court in N.K.Illiyas v. State of Kerala [(2012) 12 SCC
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748], and this Court in Thankappan v. State of Kerala
[1965 KLJ 404] and P.P.Mohanan v. State of Kerala
[2016 (3) KLJ 539] were placed reliance on in order to
fortify the said contention.
16. The Apex Court in N.K.Illiyas (supra) held that
what the appellant therein did was only a temporary
embezzlement of the money for a few days and therefore no
offence under Sections 13(1)(c) and 13(1)(d) of the PC Act
would be attracted. In Thankappan and P.P.Mohanan
(supra), this Court laid down the similar proposition. It was
held that the accused has retained the amount for a few days
and if no dishonest or fraudulent intention could be inferred
from the facts, no conviction for the offence under Section
13(1)(c) or (d) would be justifiable. The said principle could
be applied only if the delay in making payment was not
purposeful. Here, the appellant made remittance of
Rs.37,575/- only after inspection. Hence, it cannot be said
that the said amount was retained by the appellant without
dishonest intention of misappropriating the same.
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17. The view taken by this Court in Ravinathan L. v.
State of Kerala [2023 (4) KHC 530] is that
misappropriation, even for a short period, would attract the
offence of misappropriation.
18. In the facts and circumstances of this case, it can
only be said that the appellant had dishonest intention to
misappropriate atleast the sum of Rs.37,575/-. His conviction for
the offence under Sections 13(1)(c) and (d) read with Section
13(2) of the PC Act and Section 409 of the IPC is not liable to be
interfered with. The Special Court awarded only the minimum
sentence, which also is not liable to be interfered with.
Accordingly, this appeal is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
