Kerala High Court

P.S.Mony vs Superintendent Of Police on 20 March, 2025

                                             2025:KER:24005

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

 THURSDAY, THE 20TH DAY OF MARCH 2025 / 29TH PHALGUNA, 1946

               CRL.APPEAL NO. 1024 OF 2008

AGAINST THE JUDGMENT DATED 16.05.2008 IN CC NO.9 OF 2003

          OF SPECIAL JUDGE SPE/CBI-I, ERNAKULAM

APPELLANT/2ND ACCUSED:

         M.SAINUDDIN,
         AGED 49 YEARS
         S/O. ABUBACKER, PROPRIETOR, M/S.ABU AND SONS,
         MINICOY ISLAND, UNION TERRITORY OF LAKSHADWEEP,
         (PROPRIETOR, M/S. MUDINS, MINICOY ISLAND, UNION
         TERRITORY OF LAKSHADWEEP.

         ADV.ASHIK K.MOHAMED ALI


RESPONDENT/COMPLAINANT:

         SUPDT. OF POLICE, SPE/CBI
         CBI, KOCHI THROUGH THE STANDING COUNSEL FOR
         CBI, HIGH COURT OF KERALA, ERNAKULAM.


         BY ADVS.
         SRI.SREELAL WARRIAR, SC, CBI
         SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR
         C.B.I.
                                                             2025:KER:24005
                                        2
Crl.Appeal Nos.1024 and 1092 of 2008




       THIS     CRIMINAL       APPEAL       HAVING   COME   UP   FOR   FINAL
HEARING ON 28.02.2025, ALONG WITH CRL.A.1092/2008, THE
COURT ON 20.03.2025 DELIVERED THE FOLLOWING:
                                                   2025:KER:24005
                                          3
Crl.Appeal Nos.1024 and 1092 of 2008



            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

 THURSDAY, THE 20TH DAY OF MARCH 2025 / 29TH PHALGUNA, 1946

                         CRL.A NO. 1092 OF 2008

        AGAINST THE ORDER/JUDGMENT DATED IN CC NO.9 OF 2003

OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I

ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

APPELLANT/1ST ACCUSED:

             P.S.MONY
             HEADMASTER, GOVT. SCHOOL/SR.SEC. SCHOOL,,
             MINICOY, LAKSHADWEEP.


             BY ADVS.
             SRI.A.MOHAMMED
             SRI.GRASHIOUS KURIAKOSE SR.
             S.RAJEEV S
             GEORGE MATHEWS
             V.VINAY
             M.S.ANEER
             PRERITH PHILIP JOSEPH
             SARATH K.P.




RESPONDENT/COMPLAINANT:

             SUPERINTENDENT OF POLICE,
             CBI SPE KOCHIN, REPRESENTED BY THE PUBLIC
             PROSECTURO OF CBI, HIGH COURT OF KERALA,
             ERNAKULAM.
                                               2025:KER:24005
                                       4
Crl.Appeal Nos.1024 and 1092 of 2008




             BY ADVS.
             SRI.SREELAL WARRIAR, SC, CBI
             SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR
             C.B.I.



       THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH CRL.A.1024/2008, THE COURT
ON 20.03.2025 DELIVERED THE FOLLOWING:
                                                          2025:KER:24005
                                        5
Crl.Appeal Nos.1024 and 1092 of 2008


                    P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
          Crl.Appeal Nos.1024 and 1092 of 2008
   -----------------------------------------------------------
          Dated this the 20th day of March, 2025

                                 JUDGMENT

C.C.No.9 of 2003 was tried and disposed of by the Special

Judge (SPE/CBI)-I, Ernakulam as per the judgment dated

16.05.2008. The offences alleged are punishable under Section

120B read with Section 420 of the Indian Penal Code, 1860 (IPC)

and Section 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 (PC Act). Both the accused were found

guilty and convicted of those offences. The 1 st accused filed

Crl.Appeal No.1092 of 2008 and the 2nd accused filed Crl.Appeal

No. 1024 of 2008.

2. The 1st accused was the Headmaster of

Government Higher Secondary School, Minicoy during the

period from 1990 to 1996. The allegation of the prosecution is

that he hatched a conspiracy with the 2 nd accused to

misappropriate money by cheating the Administration of the

Union Territory of Lakshadweep and in pursuance of that 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

conspiracy, various amounts were withdrawn from the

treasury by the 1st accused on the strength of the proceedings

drawn by him unauthorisedly. Although the amounts

withdrawn from the treasury were paid to the 2 nd accused, the

articles were not supplied and the works were not done. By

issuing the proceedings unauthorisedly and drawing the

amount from the treasury without effecting the purchase and

undertaking the works corresponding to the proceedings, the

accused had misappropriated various amounts. It was thus

the accused allegedly committed the aforementioned

offences.

3. Four instances of work/purchases were the subject

matter of this case. The details of the said purchases and the

amounts involved are the following:

Sl.No. Description of the good purchased/ service Amount involved availed 1 Repair charges of broken furniture Rs.10,092/- 2 Purchase of molded plastic chairs & 8 tables Rs.80,500/-

with sun mica top 3 Purchase of air cooler, pedestal fans, Rs.42,500/-

exhaust fans, cushioned chairs and coir fiber carpet 4 Purchase of velvet and stain stage curtains Rs.31,125/-

2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

4. The trial court, after framing charge and on the

appellants' denying the charge, held trial. PWs.1 to 23 were

examined and Exts.P1 to P46 were marked. After closing the

prosecution evidence, the accused were questioned under

Section 313(1)(b) of the Code. Both of them denied having

committed the offences. The 1 st accused took the stand that

in order to arrange infrastructure necessitated on account of

the affiliation of the School to the Central Board of

Secondary Education, immediate purchases and works were

to be done. That was as directed by the superiors. Therefore,

he had to take steps for the purchases and works for which

there was implied sanction from the Administrator of

Lakshadweep. The intended purchases were effected and

works were done, and the amounts drawn from the treasury

were properly utilised. He thus contended that he did not

commit any offence. The 2 nd accused took the stand that the

articles were supplied and works were undertaken

corresponding to the bills and there was absolutely no

misappropriation or element of cheating in the transactions.

2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

The Special Court, after considering the evidence on record,

found both the appellants guilty. The findings leading to their

conviction are assailed in the respective appeals on factual

and legal grounds.

5. Heard the learned counsel for the respective

appellants/accused and the learned Standing Counsel for the

CBI.

6. Four instances of work/purchases are the subject

matter of this appeal. The allegations are two-fold. The 1 st

accused in the capacity of the Headmaster, Govt. Higher

Secondary School, Minicoy was not competent to spend more

than Rs. 1000/- for the such work/purchases. The second is

that the amounts drawn from the treasury based on the

unauthorised proceedings were misappropriated. The 2nd

accused acted as a contractor/supplier of the said work/

purchases, but he was only a proxy of the 1st accused.

7. The fact that the 2nd accused was the contractor/

supplier for the work/purchases, the 1 st accused on the

strength of the proceedings issued by he himself had 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

withdrawn the respective amounts from the Sub Treasury,

Minicoy and such amounts were paid to the 2 nd accused are

not disputed. The said facts are proved with the help of

overwhelming evidence as well.

8. Exts.P6, P10, P13 and P16 are the proceedings

issued by the 1st accused in respect of the said

work/purchases. The claim of the 1st accused is that he had

implied consent from the authorities to draw up the said

proceedings, and he was empowered owing to the urgency for

carrying out the works and effecting purchases in the wake of

obtaining affiliation to the school to the CBSE. In order for an

easy understanding and reference the details of the

works/purchases and details of relevant documents are

tabulated below:

Sl. Description of the good purchased/ Amount Proceedings Receipt No. service availed involved (Exhibit) (Exhibit) 1 Repair charges of broken furniture Rs.10,092/- P16 P21 2 Purchase of molded plastic chairs & 8 Rs.80,500/- P13 P19 tables with sun mica top 3 Purchase of air cooler, pedestal fans, Rs.42,500/- P6 P20 exhaust fans, cushioned chairs and coir fiber carpet 4 Purchase of velvet and stain stage Rs.31,125/- P10 P18 curtains 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

9. The Director of Education (PW16), the successor

Headmaster of the Govt.Higher Secondary School, Minicoy

(PW11) and the Senior Administrator (Education) (PW17)

deposed before the court about the financial powers of the 1 st

accused. Their consistent version is that as the Headmaster of

the Govt.Higher Secondary School, Minicoy, the 1 st accused

could have incurred expenses upto Rs.1,000/- only for a

single instance of non-recurring expenditure. The case of the

1st accused is that he had implied consent from the higher

authorities to spend more to meet the urgent needs. But, no

evidence in support of that claim is adduced by the 1 st

accused. From the said evidence and circumstances, there can

be no doubt that the 1 st accused exceeded his authority while

issuing Exts.P6, P10, P13 and P16 proceedings. By issuing the

said proceedings, he violated the departmental norms and

regulations.

10. The prosecution alleges that the 2nd accused was

not a contractor or a supplier. In order to prove that fact, the

prosecution has examined PW1 and PW2, who are the father 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

and the brother of the 2nd accused. Both of them deposed

before the court, resiling from the statements they gave to

the investigating officer. Suffice it to say that absolutely no

evidence has come from these witnesses to substantiate the

allegation that the 2nd accused did not have such a business.

No other evidence is available in that regard as well.

11. Exts.P18, P19, P20 and P21 are the receipts issued

by the 2nd accused in respect of the payment concerning the

works/supply of goods in question. The prosecution has no

case that payment as per the said receipts were not effected.

Therefore, the position is that entire amounts withdrawn by

the 1st accused corresponding to Exts.P6, P10, P13 and P16

proceedings were paid to the 2nd accused. The question then

is whether he undertook the work and supplied the articles in

terms of the said proceedings and the corresponding invoices.

12. The Special Court considered the evidence on

record in detail with reference to the aforementioned

question. The first item was the repair work of broken

furniture. The Junior Engineer, Minicoy has certified that such 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

repairs were undertaken. However, the learned Special Judge

did not accept that evidence saying that the Junior Engineer

was incompetent to certify that fact. Thus, the position is that

the work in question was undertaken, but it was not duly

certified.

13. When the dishonest intention to misappropriate is

the fact in issue, the question is whether the money was

spent and the corresponding work was done. Whether or not

the person, who certified that the work was duly undertaken

is qualified to do so, unless it is proved that the money was

misappropriated either by the public servant or any other

person, no prosecution for the offences under Section 13(1)

(d) of the PC Act or under Section 420 of the IPC would be

successful.

14. Coming to the three other instances of the

purchases in question, along with the unauthorised withdrawal

of the amounts, improper accounting of the articles purchased

was the fact based on to convict the accused. The learned

Special Judge considered the evidence of PW7, the Accountant 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

in the Govt.Higher Secondary School during the relevant

period and the entries in Ext.P27 stock register in order to

arrive at a conclusion that the accounting of the articles

purchased was not proper and therefore there was conspiracy,

misappropriation and cheating. I fail to understand how an

improper accounting or incorrect entry of the articles in the

stock register would enable an inference of misappropriation

of the money used to purchase the articles. If, as a matter of

fact, the articles were purchased and such articles are added

to the stock, it cannot be found that there occurred criminal

misappropriation.

15. The findings of the learned Special Judge are that

the repair work corresponding to Ext.P16 was carried out and

the purchases corresponding to Exts.P6, P10 and P13 were

made. The further finding is that there has been irregularities

in making entries concerning the articles purchased in the

stock register. The definite allegation of the accused is that

PW23, the investigating officer did not verify all the stock

registers and therefore the evidence concerning the same did 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

not come on record. That aspect is substantiated to a great

extent from his evidence itself. Thus, more than that the

articles were not appropriately entered in the stock registers,

there has not been any evidence to prove beyond doubt that

the accused committed misappropriation of funds.

16. A similar situation was considered by the Apex

Court in C.Chenga Reddy v. State of A.P. [(1996) 10 SCC

193]. In that case the contract was awarded in violation of

the regulations. It was considered whether in the absence of

circumstances sufficient to prove the guilt of criminal

misconduct could there be a conviction. The following

observations are relevant:

"22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. xx xx"

17. The said view was reiterated by the Apex Court in

C.K.Jaffer Sharief v. State (through CBI) [(2013) 1 SCC

205]. Unless the prosecution is able to establish that the

accused has obtained some material thing or pecuniary

advantage on account of the misconduct, misusing his official

position, a conviction for the offence under Section 13(1)(d)

of the PC Act is not possible. The same principle is applicable

to the offence under Section 420 of the IPC as well. As held

by the Apex Court in Abdulla Mohammed Pagarkar v.

State (Union Territory of Goa, Daman and Diu) [(1980) 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

3 SCC 110], a suspicion, however strong, is not enough to

convict an accused. It was held:

"24. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items

(a) to (e) in paragraph 9 and items (i) and (iii) in paragraph 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out."

18. In view of the law laid down in the aforesaid

decisions, violation of norms by the 1 st accused in the matter

of drawing Exts.P6, P10, P13 and P16 proceedings by itself

would not amount to an offence under Section 13(1)(d) of the

PC Act. No evidence to establish that the 1 st accused did so 2025:KER:24005

Crl.Appeal Nos.1024 and 1092 of 2008

with dishonest intention of obtaining any material thing or

pecuniary advantage for himself or for any other person is

adduced either. Needless to say, the conviction for the

offences under Section 120B read with Section 420 of the IPC

is also untenable.

In the light of the above, conviction of accused Nos.1