Sushama Balan vs State Of Kerala
2025 Latest Caselaw 10446 Ker

Kerala High Court

Sushama Balan vs State Of Kerala on 4 November, 2025

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

    TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947

                      CRL.A NO. 390 OF 2014

     AGAINST THE JUDGMENT DATED 07.04.2014 IN CC NO.6 OF 2009 OF

ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM

APPELLANT/ACCUSED:

          SUSHAMA BALAN,
          D/O. LATE P.BALAKRISHNAN, FORMERLY SECTION ASSISTANT,
          AS-4 SECTION, KERALA STATE BEVERAGES CORPORATION LTD.,
          HEAD OFFICE, THIRUVANANTHAPURAM (PUNARTHAM, KVR NO.
          370, T.C. 13/777, VANCHIYOOR, THIRUVANANTHAPURAM).


          BY ADV SRI.C.P.UDAYABHANU


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          (REP. BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE
          & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM) REP. BY
          STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.


          SPECIAL PUBLIC PROSECUTOR SRI RAJESH A FOR VACB
          SENIOR PUBLIC PROSECUTOR SMT.REKHA.S FOR VACB


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.10.2025,
THE COURT ON 04.11.2025 DELIVERED THE FOLLOWING:
                                                           2025:KER:84225
Crl.M.C.No.390/2014               2




                                                               `C.R'


                      A. BADHARUDEEN, J.
            ================================
                   Crl.Appeal No.390 of 2014-A
          ================================
              Dated this the 4th day of November, 2025

                             JUDGMENT

This appeal has been filed under Section 374(2) of the Code of

Criminal Procedure, 1973 (`Cr.P.C' for short) by the sole accused in

C.C.No.6 of 2009 on the files of the Enquiry Commissioner and Special

Judge, Thiruvananthapuram, challenging the conviction and sentence

imposed against him dated 07.04.2014.

2. Heard the learned counsel for the appellant/accused as

well as the learned Public Prosecutor for VACB. Perused the records of

the Special Court and also gone through the decisions placed by the

learned Public Prosecutor.

3. The prosecution case emanated by registering

V.C.No.6/2004 of VACB, Thiruvananthapuram, on completion of the 2025:KER:84225

investigation, the Investigating Officer filed final report before the Special

Court alleging commission of offences punishable under Sections 409, 471

and 477A of the Indian Penal Code (`IPC' for short) as well as under

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

Corruption Act, 1988 (`PC Act, 1988' for short hereinafter), by the

accused.

4. The epitomized form of allegation is that the accused

being a public servant, employed as Section Assistant in the Kerala State

Beverages (Manufacturing and Marketing) Corporation (KSBC) Ltd.,

Head Office, Thiruvananthapuram, and holding the charge of AS4 section

of the said office, during the period between 1.11.2002 and 8.1.2003 had

received three chalans bearing Nos.20 to 22 dated 11.12.2002 for a total

amount of Rs.94,206/- being the wages, pension contribution, and uniform

allowance for the month of January 2003 due to the staff of the Excise

establishment attached to the Head Office of KSBC, and on the basis of

the said chalans, the accused prepared a Note and Note for Settlement of

Claim (`NSC' for short) of Rs.94,206/- on 16.12.2002 and obtained

approval from the Managing Director, KSBC, and in pursuance of the 2025:KER:84225

approval, cash cheque No.16461 for Rs.94,206/- (Rupees Ninety Four

Thousand two hundred and six only) was received by Charge Witness

No.1 Sushama Devi, Assistant Manager of the said office on 18.12.2002

from the Account Section of the said office along with two other cheques

bearing Nos. 16457 and 16458 issued in favour of BSNL and M/s. Escotel

Mobile Ltd. respectively and all the said three cheques were entrusted with

the accused on 18.12.2002. Subsequently the accused handed over cheque

Nos.16457 and 16458 to the concerned offices. But cheque No.16461 for

Rs.94,206/- was kept in her custody with dishonest intention till

27.12.2002 and encashed the said cheque from State Bank of Travancore,

Sasthamangalam Branch on 28.12.2002 after affixing a forged signature

on the overleaf of the cheque and thus the accused misappropriated an

amount of Rs.94,206/- (Rupees Ninety Four Thousand two hundred and

six only) from the Account of KSBC. It is further alleged that the accused

again used the same chalans, ie. chalan Nos.20 to 22 dated 11.12.2002,

with dishonest intention and prepared a forged Note and NSC dated

24.12.2002 for the same purpose, deliberately suppressed the Note and the

NSC already approved by the Managing Director, KSBC for the very same 2025:KER:84225

purpose on 17.12.2002 and also about the receipt of cheque No. 16461 for

the same purpose, and produced before the Managing Director, KSBC on

24.12.2002 as original and genuine in the absence of CW1 Sushama Devi,

the Assistant Manager, and the accused dishonestly obtained another cash

cheque for Rs.94,206/- vide No.16532 on 27.12.2002 from the Account

Section of KSBC and encashed the cheque from SBT, Sasthamangalam on

27.12.2002 itself. Accused after encashing Rs.94,206/- each on

27.12.2002 and 28.12.2002 remitted only an amount of Rs.94,206/- on

28.12.2002 in the Treasury, Vellayambalam, towards the establishment

expenses of the Excise Staff attached to the Head Office of KSBC and

thereby dishonestly or fraudulently misappropriated the sum of

Rs.94,206/- and also the accused, by corrupt or illegal means or by

otherwise, abusing her position as such a public servant, obtained for

herself pecuniary advantage to the extent of Rs.94,206/- and thereby

committed criminal misconduct, criminal breach of trust and falsification

of accounts.

5. The Special Court proceeded with the trial. PW1 to

PW14 were examined and Exts.P1 to P43 were marked on the side of the 2025:KER:84225

prosecution. On the side of the defense, DW1 was examined and Exts.D1

to D5 were marked. On evaluation of the evidence, the Special Court

found that the accused committed offences punishable under Sections 409

and 477A of the IPC as well as under Section 13(1)(c) and 13(1)(d) read

with 13(2) of the PC Act, 1988 and accordingly he was sentenced as

under:

"the accused is sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹10,000/- (Rupees Ten Thousand only) each. Fine, if not paid, accused shall undergo rigorous imprisonment for a further period of three months each. For the offence under S. 409 I.P.C. also the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹10,000/- (Rupees Ten Thousand only). Fine, if not paid, accused shall undergo rigorous imprisonment for a further period of three months. For the offence under S.477-A I.P.C. the accused is sentenced to undergo rigorous imprisonment for one year."

6. While attempting to upset the verdict under challenge,

the learned counsel for the appellant/accused specifically argued that in so

far as Ext.P4 cheque for Rs.94,206/- and misappropriation of the amount

covered by the said cheque are concerned, no convincing evidence was

adduced by the prosecution to show the entrustment of Ext.P4 cheque with

the domain of the accused. It is pointed out that, the evidence of PW2,

who earlier was arrayed as one among the accused, would show that she

had accepted Ext.P4 cheque along with Exts.P5 and P6 cheques to process 2025:KER:84225

the same in the absence of the appellant/accused and it was not entrusted

to the accused. According to the learned counsel for the appellant, no

documentary evidence was produced to show that PW2 entrusted the

domain of Exts.P4 to P6 cheques in the custody of the accused. Therefore,

the offence under Section 409 of IPC could not be found out and thus the

Special Court is wrong in finding so. It is also pointed out that the oral

evidence of PW2 that she had entrusted Exts.P4 to P6 solely to the accused

is insufficient, to find entrustment as alleged by the proseuction.

Regarding falsification of the document also, the learned counsel for the

accused argued that no convincing evidence was adduced. It is pointed out

further that on reading the opinion of the handwriting expert, marked as

Ext.P34 proved through PW12 also, as regards to Ext.P4, the handwriting

of the accused was not specifically found though the handwriting in

Exts.P5 and P6 are that of the accused was found, as opined by the expert.

Therefore, the guilt of the accused in the matter of misappropriation of

Rs.94,206/-, covered by Ext.P4 cheque, is not established beyond

reasonable doubt and in such view of the matter, the verdict would require

interference. The learned counsel read out the relevant evidence of PW2, 2025:KER:84225

PW3, PW5, PW6, PW11 and PW12, apart from the evidence of PW14, the

Investigating Officer.

7. Zealously opposing the contentions raised by the learned

counsel for the accused, the learned Public Prosecutor submitted that in

this matter Exts.P4 to P6 were the cheques generated simultaneously. The

accused, who dealt with AS4 section of the KSBC, Head Office,

Thiruvananthapuram held the charge of the section during the period

between 01.11.2002 and 08.01.2003, had received three chalans bearing

Nos.20 to 22 dated 11.12.2002, marked as Ext.P9 series for a total amount

of Rs.94,206/-, being the wages, pension contribution and uniform

allowance for the month of January, 2003 due to the staff of the Excise

Department attached to the Head Office of KSBC the accused who is the

custodian of the same prepared a note and NSC of Rs.94,206/- on

14.12.2002 and obtained approval from the Managing Director, KSBC

and in pursuance of the approval, cash cheque No.16461 for an amount of

Rs.94,206/- marked as Ext.P4 was received by PW2 Sushama Devi,

Assistant Manager of the said office on 18.12.2002 along with Exts.P5 and

P6 cheques from the Account Section and PW2 Sushama Devi, in the 2025:KER:84225

absence of the accused, collected the above Ext.P4 cheque as well as

Exts.P5 and P6 cheques, bearing numbers 16457 and 16458 issued in

favour of BSNL and M/s.Escotel Mobile Ltd. respectively and thereafter

entrusted the same to the accused. Subsequently, the accused handed over

Exts.P5 and P6 account payee cheques to the concerned offices.

Thereafter she kept Ext.P4 cheque in her custody till 27.12.2002. Thus the

entrustment of the cheque was proved by the prosecution not only with the

aid of the evidence of PW2, but by the evidence of the expert and on the

strength of subsequent note and NSC marked as Ext.P3(d) generated by

the accused. Even though the accused had denied her dealings with

Exts.P4 to P6 cheques, the evidence available, including Ext.P34 FSL

report, would show that the accused herself dealt with Exts.P5 and P6

cheques and the handwriting therein was supported by the substantial

evidence of PWs 2 and 3. Therefore, the entrustment for the purpose of

Section 409 of IPC is proved and hence the contra contention raised by the

learned counsel for the accused cannot be sustained. It is pointed out

further that it is the accused, who generated Ext.P3(a) NSC to generate

Ext.P4 and soon prepared another NSC as per Ext.P3(d) and generated 2025:KER:84225

Ext.P8 cheque for the said amount and encashed the same on 27.12.2002

and on the next day by impersonation, Ext.P4 also was encashed by the

accused and misappropriated the amount of Rs.94,206/- covered by the

same. Thus the accused falsified Ext.P3(d) and Ext.P8 cheque.

8. Now the points arise for consideration are:

(i) Whether the Special Court went wrong in finding that the

appellant/accused committed offence punishable under Section 409 of

IPC?

(ii) Whether the Special Court went wrong in finding that the

appellant/accused committed offence punishable under Section 477A of

IPC?

(iii) Whether the Special Court went wrong in finding that the

appellant/accused committed offence under Section 13(1)(c) r/w 13(2) of

the PC Act, 1988?

(iv) Whether the Special Court went wrong in finding that the

appellant/accused committed offence under Section 13(1)(d) r/w 13(2) of

the PC Act, 1988?

(v) Is it necessary to interfere with the verdict under 2025:KER:84225

challenge?

         (vi)     The order to be passed?

Point Nos.(i) to (vi)

9. Ext.P23 is the appointment order of the accused Sushama

Balan, issued by the Managing Director, KSBC and the same would show

that the accused had been appointed as Assistant Grade II. PW5 had given

evidence in support of Ext.P23. Ext.P2 is the attendance register of

KSBC, Head Office Administrative Section for the month of November,

2002 and December, 2002 therein in page Nos.2 and 6 the name of the

accused with her initial could be seen. Exts.P2(a) and P2(b) are the

relevant pages. PW1 supported Ext.P2. Apart from Ext.P2, PW7 the

Administrative Officer, who was the custodian of Ext.P2 also supported

the evidence of PW11. Ext.P16 is the office order dated 31.10.2002 issued

by the Administrative Officer, KSBC and Ext.P16(a) is the letter issued by

the General Manager (Administration) PW3, to the Investigating Officer.

As per Ext.P16(a) the entrustment of the work relating to a case for

01.11.2002 to the accused could be seen. Further Ext.P17, a copy of the

office order, would show that the accused was posted to the Secretariat 2025:KER:84225

section w.e.f 08.01.2003 from AS4 seat after posting Mr.Sivadasan in the

said seat. Exts.P12, P16 and P17 were marked through General Manager.

Thus the evidence of PW1 to PW3, PW5 and PW7 would categorically

show that the accused was working as Assistant Manager, KSBC holding

the charge of AS4 section dealt with all wages, pension contribution and

uniform allowance for the month of January, 2003 due to the staff of the

Excise Department attached to the Head Office of KSBC .

10. As regards to sanction under Section 19 of the PC Act,

1988 as per Ext.P25 proceedings, proved through PW5 and as admitted by

the accused during her questioning under Section 313(1)(b) of Cr.P.C, the

accused had retired on 21.11.2007 and, therefore, sanction was not

required to prosecute her. Otherwise, no challenge was raised by the

learned counsel for the accused regarding sanction in any manner. As

already observed the prosecution succeeded in establishing that the

accused held AS4 section of KSBC w.e.f 01.11.2002 and she was duty

bound to prepare note and NSC in respect of the salary and allowances, as

alleged by the prosecution.

11. PW2, the Assistant Manager (Administration) deposed 2025:KER:84225

that the Excise establishment was attached to the KSBC and thus it was

necessary to remit the monthly salary amount of Excise wing from the

account of KSBC in Treasury in advance and for that purpose the challans

counter signed by the Assistant Excise Commissioner would be produced

before the AS4 Section of KSBC and those challans were obtained by the

accused while holding the charge of AS4 section and the accused

originated note and NSC for the same.

12. In this case, admittedly Ext.P9 series were acted upon by

the accused to prepare note and Ext.P3(a) NSC for the month of January,

2003 on 16.12.2002. With regard to Ext.P3(a), copy of NSC dated

16.12.2002, PW2 deposed that the initial of the accused was available in

Ext.P3(a) along with the initial of PW2. According to PW2, Ext.P3(a) had

been prepared in the handwriting of the accused and PW2 was familiar

with the handwriting of the accused. According to PW2, after preparation

of notes and NSC, the Assistant, AS4 section (the appellant/accused)

would place the same before the Assistant Manager (PW2) and she would

verify the same and after verification she would put her initial. Then the

same would be forwarded to the Manager through Peon. Then the file 2025:KER:84225

would be placed before the Administrative Officer, the Finance Manager

and the Managing Director and all of them would verify the file. After

obtaining signature of the Managing Director, the file would be given back

to AS4 section and from the AS4 section, the same would be forwarded to

cash section along with NSC. Thereafter cash cheque would be issued

from cash section to AS4 section after acknowledging the same in the

cheque issue register, ie. Ext.P7. Ext.P4 is the cheque No.16461 for

Rs.94,206/- dated 17.12.2002 and it was issued on Ext.P3(a) NSC. PW2

deposed that Ext.P5 (cheque No.16457) and Ext.P6 (cheque No.16458)

were received by her on 18.12.2002 along with Ext.P4 cheque as per

Ext.P7 cheque issue register and she soon entrusted Exts.P4 to P6 to the

accused. Even though it was PW2, who accepted Exts.P4 to P6 cheques

for and on behalf of AS4 Section, PW2's version is that soon she entrusted

the same to the accused. In this context, it is interesting to note that the

evidence discussed herein above would indicate that Ext.P4 cheque of

Rs.94,206/- was issued on the basis of Ext.P3(a) NSC. Ext.P3(a) NSC

proved to be generated by the accused. It is surprising to see that though

the accused was aware of Ext.P3(a) NSC prepared for drawing Ext.P4 2025:KER:84225

cheque, she had again generated Ext.P3(d) NSC on the basis of Ext.P9

series of challans (for which Ext.P4 cheque was issued) and were placed

before the superior officers including the Finance Manager, Administrative

Officer and the Managing Director on 24.12.2002 and after obtaining their

signature in Ext.P3(d) she placed before C section (cash section) and

obtained Ext.P8 cheque on the basis of Ext.P3(d) NSC for Rs.94,206/- and

encashed the same on 27.12.2002. On the next day, ie., on 28.12.2002,

Ext.P4 cheque also was encashed. Ext.P3(d) was generated on the day

when PW2 was absent as deposed by her; and the same otherwise should

have been routed through her.

13. The specific contention raised by the learned counsel for

the accused is that as regards to entrustment of Exts.P4 to P6 cheques with

the accused is concerned, there is no documentary evidence apart from the

evidence of PW2. Here comes the significance of Ext.P3(d) NSC again

prepared by the accused. Prudence would indicate that an officer who

prepared Ext.P3(a) NSC for drawing cheque for an amount of Rs.94,206/-

again prepares Ext.P3(d) NSC for the said amount based on the same

challans Ext.P9 series, which would show that she wanted to suppress 2025:KER:84225

Ext.P3(a) NSC and Ext.P4 cheque. This suppression to be discernible

from the fact that Ext.P3(d) was granted on a day when PW2, who was to

see the same, was absent. To put it otherwise, if Ext.P4 cheque was not

received by the accused, prudence would suggest that she ought to have

enquired about Ext.P3(d) NSC based on Ext.P9 series challans to ensure as

to whether any cheque was written thereof instead of generating Ext.P3(d)

NSC for the same amount. Here comes the significance of the stand taken

by the accused contending that she did not receive Exts.P4 to P6 cheques.

If this contention is true, she ought to have generated note and NSC on

Exts.P5 and P6 cheques also for the second time. But she didn't generate

note or NSC in relation to Exts.P5 and P6 cheques. To the contrary, those

cheques were encashed at the instance of the accused since the same were

account payee cheques.

14. Even though the contention of the accused is that she did

not receive Exts.P4 to P6 cheques, Ext.P34 FLS report authored by PW2

would show that 213 markings on the reverse side of Ext.P5 cheque leaf

and 212 markings on the reverse side of Ext.P6 cheque were written in the

handwriting of the accused Sushama Balan. If she received Exts.P5 and 2025:KER:84225

P6 cheques as deposed by PW2 and as supported by the evidence of PW12

and Ext.P34, the contention that she did not receive Ext.P4 alone would

not stand. That is to say, as I have already observed, if Ext.P4 cheque was

not received by the accused, she ought to have enquired about Ext.P3(a)

NSC instead of initiating another NSC as Ext.P3(d), that too, when PW2

was absent in the office and generated Ext.P8 cheque because NSC should

have been rooted through PW2 alone. Thus it is established by the

evidence of PW2 Assistant Manager, PW12 expert, PW5 Finance Manager

and PW7 Administrative Officer supported by PW3 General Manager,

who conducted Ext.P15(a) enquiry, that the accused, who prepared

Ext.P3(a) NSC for the purpose of Ext.P4 cheque again, after suppressing Ext.P4

cheque in her custody, generated Ext.P3(d) NSC, thereby Ext.P8 cheque was

encashed for the same purpose. As per the evidence of PW10, the officer of

SBT and from Ext.P3(g) and Ext.P32 letter issued by SBT,

Sasthamangalam Branch, it is clear that Ext.P4 was encashed on

28.12.2002 at 10.10 a.m and on 27.12.2002 Ext.P8 cheque was also

encashed for the said purpose. It is true that PW2 was arrayed as an

accused earlier since she found to have received Exts.P4 to P6 cheques.

2025:KER:84225

But during investigation entrustment of Exts.P4 to P6 cheques by PW2 to

the accused had been revealed and accordingly she was removed from the

array of accused and made as a witness. Merely because PW2 got arrayed

as an accused initially, the same has no bearing to act upon her evidence if

the same found to be wholly reliable and supported by other evidence

already discussed.

15. In this connection, it is necessary to refer the

ingredients to attract offence under Section 409 of IPC. Section 409 of

IPC is extracted as hereunder:

"409. Criminal breach of trust by public servant, or by banker, merchant or agent: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

16. Section 409 is pari materia to Section 316(5) of the

Bharatiya Nyaya Sanhita, 2023 (`BNS' for short) and Section 316(5) of

BNS reads as under:

"316: Criminal breach of trust: Whoever, being in any 2025:KER:84225

manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.""

17. Analysing the ingredients to attract offence under

Section 409 of IPC, its applicability is as held by the Apex Court in

[(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v.

State of Andhra Pradesh, as pointed out by the learned counsel for the

petitioner.

18. In Sadhupati Nageswara Rao v. State of Andhra

Pradesh's case (supra), the Apex Court, while upholding the conviction

held that, where the appellant, an agent entrusted with the distribution of

the rice under the "Food for Work Scheme" to the workers on production

of coupons, was charged with misappropriation of 67.65 quintals of rice,

the evidence proves that there was entrustment of property to the accused

19. In order to sustain a conviction under section 409 of the

IPC, two ingredients are to be proved; namely, (i) the accused, a

public servant or a banker or agent was entrusted with the property 2025:KER:84225

of which he is duty bound to account for; and (ii) the accused has

committed criminal breach of trust. What amounts to criminal breach of

trust is provided under Section 405 IPC. The basic requirements to bring

home the accusation under Section 405 IPC are to prove conjointly; (i)

entrustment and (ii) whether the accused was actuated by a dishonest

intention or not, misappropriated it or converted it to his own use or to the

detriment of the persons who entrusted it, as held by the Apex Court in the

decision reported in Sadhupati Nageswara Ra v. State of Andhra

Pradesh's case (supra).

20. The gravamen of the offence under Section 409 of IPC is

dishonest intention on the part of the accused but to establish the dishonest

intention, it is not necessary that the prosecution should establish an

intention to retain permanently, the property misappropriated. An

intention, wrongfully to deprive the owner of the use of the property for a

time and to secure the use of that property for his own benefit for a time

would be sufficient. Section 409 of IPC cannot be construed as implying

that any head of an office, who is negligent in seeing that the rules about

remitting money to the treasury are observed, is ipso facto, guilty of 2025:KER:84225

criminal breach of trust; but something more than that is required to bring

home the dishonest intention.

21. Tracing the ingredients of the offence punishable under

Section 477A of IPC, Section 477A provides as under:

"Section 477A - Falsification of Accounts : "Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

22. Section 344 of BNS is corresponding to Section 477A of

IPC. The same reads as under:

"344. Falsification of accounts:- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his 2025:KER:84225

employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

23. The three ingredients to prove the offences are:

(i) That at the relevant point of time, the accused should be

a clerk or officer or servant or acting in that capacity ;

(ii) That he should destroy, alter, mutilate or falsify any

book, electronic record, paper, writing, valuable security or account, which

belongs to or was in the possession of his employer and

(iii) The act should have been done willfully and with an

intention to defraud. To convict a person under section 477A of the IPC,

the prosecution has to prove that there was a willful act, which had been

made with an intent to defraud and while proving "Intention to defraud",

the prosecution has to further prove the two elements that the act was an

act of deceit and it had caused an injury. In the present case, there may be

an injury, but there is no deceit.

24. For the offence under Section 477A of IPC, what has 2025:KER:84225

got to be proved is twofold viz., that the person who commits the offence

is a clerk, officer or servant, and secondly, that there was intent to

defraud. It is sufficient, to satisfy the words of the section, to prove that

the person charged under this section is one who undertakes to perform

and does perform the duties of a clerk or servant whether in fact he is a

clerk or servant or not, and though he is under no obligation to perform

such duties and receives no remuneration. The emphasis is upon the

words "in the capacity of a clerk, officer or servant".

25. To attract section 477A, the-employee concerned must

destroy, alter, mutilate or falsify book or accounts etc, of the employer,

inter alia, with intent to defraud. The term "intend to defraud" has already

been explained in Section 25 of IPC. It contains two elements, viz., deceit

and injury. A person is said to deceive another when by practising

suggestio falsi or suppressio veri or both, he intentionally induces another

to believe a thing to be true. "Injury" defined in Section 44 of IPC means

any harm whatever illegally caused to any person in body, mind,

reputation and property. In the decision reported in [1976 CrLJ 913 (SC) :

1976 Cr LR (SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman 2025:KER:84225

Singh v. Delhi Administration, the Apex Court held that whenever the

words "fraud" or "intent to defraud" or "fraudulently" occur in the

definition of a crime, two elements at least are essential to the commission

of the crime; namely, firstly, deceit or an intention to deceive or in some

cases mere secrecy; and, secondly, either actual injury or possible injury or

an intent to expose some person either to actual injury to a risk of possible

injury by means of that deceit or secrecy. Where the accused prepared a

false travelling allowance bill, presented it to a sub-treasury and withdrew

the amount, it meant securing an advantage by deceitful act and causing

corresponding loss to the State. The offence will fall under section 477A

and the fact that the accused subsequently paid over the entire amount is

not a matter to be considered.

26. As per Section 13(1)(c) and (d) of the PC Act, 1988, a

public servant is said to come under the offence of `criminal misconduct',

if he dishonestly or fraudulently misappropriates or otherwise converts for

his own use any property entrusted to him or under his control as a public

servant or allows any other person so to do; or if he,-- (i) by corrupt or

illegal means, obtains for himself or for any other person any valuable 2025:KER:84225

thing or pecuniary advantage; or (ii) by abusing his position as a public

servant, obtains for himself or for any other person any valuable thing or

pecuniary advantage; or (iii) while holding office as a public servant,

obtains for any person any valuable thing or pecuniary advantage without

any public interest.

27. Bearing in mind the ingredients to attract the offences

which were discussed herein above, the evidence evaluated in detail would

show that the accused herein who was entrusted with AS4 section to deal

with pension contribution, and uniform allowance for the month of

January 2003 due to the staff of the Excise establishment attached to the

Head Office of KSBC, generated file for Ext.P4 cheque. Evidence

available would go to show that the accused got custody of Exts.P4 to P6

cheques and out of which Exts.P5 ad P6 account payee cheques were

encashed and Ext.P4 cheque was kept at her custody. Then using Ext.P9

chalan series again she had generated Ext.P3(d) notes and Ext.P8 cheque

for the said sum. Thereafter Ext.P8 cheque was encashed for Rs.94,206/-

on 27.12.2002. On the next day, she had encashed Ext.P4 cheque and the

amount thereof was also misappropriated. Thus the finding of the Special 2025:KER:84225

Court that the accused committed the offenses punishable under Sections

409, 477A of IPC as well as Section 13(1)(c) and 13(1)(d) r/w 13(2) of the

PC Act, 1988 is only to be justified and no interference with the conviction

is found necessary. Therefore, the conviction is confirmed.

28. Coming to the sentence, the Special Court imposed

rigorous imprisonment for one year for the offence punishable under

Section 13(1)(c) and 13(1)(d) r/w 13(2) of the PC Act, 1988, the minimum

permissible as per the statute. The Special Court imposed the same

sentence of rigorous imprisonment for one year each for the offence

punishable under Section 409 and 477A of IPC. Thus the sentence is, in

fact, confined to the statutory minimum. Therefore, there is no

interference required and this Crl.Appeal fails and is accordingly

dismissed.

Registry is directed to forward a copy of this judgment to the

Enquiry Commissioner and Special Judge, Thiruvananthapuram, for

information and further steps.

Sd/-

A. BADHARUDEEN, JUDGE rtr/