Kerala High Court

N.Ponnan vs State on 8 October, 2025

       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

      THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA,

                              1947

                    CRL.A NO. 493 OF 2010

     AGAINST    THE    JUDGMENT      DATED   11.02.2010   IN   CC

NO.25 OF 2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,

KOTTAYAM

APPELLANT/ACCUSED:

           N.PONNAN (FORMER SR.ASSISTANT GRADE i,
           KSCSC, TALUK DEPOT, CHERTHALA),
           S/O.NARAYANAN,, PUNNAIKA PULLICHIRA, C.M.C-
           19, CHERTHALA, ALAPPUZHA DISTRICT.


           BY ADV SHRI.G.KRISHNAKUMAR


RESPONDENT/COMPLAINANT:

       STATE OF KERALA
       REPRESENTED BY DY.S.P, VACB,
       ALAPPUZHA REPRESENTED THROUGH THE PUBLIC
       PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.09.2025,   THE    COURT   ON   08.10.2025    DELIVERED      THE
FOLLOWING:
                                                           2025:KER:74540
Crl.Appeal No.493/2010              2




                                                                "C.R"

                     A. BADHARUDEEN, J.
            ================================
                  Crl.Appeal No.493 of 2010-B
          ================================
              Dated this the 8th day of October, 2025


                            JUDGMENT

The accused in C.C.No.25 of 2008 on the files of the Enquiry

Commissioner and Special Judge, Kottayam, has filed this Criminal

Appeal under Section 374 of the Code of Criminal Procedure (`Cr.P.C' for

short hereafter) challenging the conviction and sentence imposed against

him in the above case dated 11.02.2010 arraying State of Kerala

represented by the Dy.S.P, VACB as the respondent.

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

the learned Special Public Prosecutor appearing for the VACB.

3. Perused the records of the Special Court and the

judgment under challenge.

4. The prosecution case is that the accused while working

as Senior Assistant Grade-I, in Kerala State Civil Supplies Corporation 2025:KER:74540

(`KSCSC' for short), Taluk Depot, Cherthala, and as such a public servant,

abused his official position to obtain illegal pecuniary advantage for

himself and accordingly he had misappropriated 120 quintals of levy sugar

worth Rs.1,02,000/- which was entrusted to him on 18.04.1991 on

falsifying the records thereof. On this premise, prosecution alleged that

the accused had committed offences punishable under Sections 409 and

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

13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1998 (`PC Act,

1988' for short hereafter).

5. On receipt of the final report filed in this crime, the

Special Court proceeded with trial on completing the pre-trial formalities.

During trial, PW1 to PW8 were examined and Exts.P1 to P28 were marked

on the side of the accused. On the side of defence, Exts.D1 and D2 were

marked. On an anxious consideration of the evidence available, the

Special Court found that the accused had committed offences punishable

under Sections 409 and 477A of the IPC and also under Section 13(2) r/w

13(1)(c) of the PC Act, 1988. Thus the trial court convicted and

sentenced the accused as under:

2025:KER:74540

"In the result, the accused is convicted under Sec. 13(2) r/w 13(1) (c) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for 3 (three) years and fine Rs.1,00,000/- (one lakh), in default to under go simple imprisonment for 6 (six) months, convicted under section 409 I.P.C. and sentenced to undergo rigorous imprisonment for 3 (three) years and fine Rs.1,00,000/- (one lakh) in default to undergo simple imprisonment for 6 (six months) and convicted under Sec.477A I.P.C. and sentenced to undergo rigorous imprisonment for one year. The sentences shall run concurrently."

6. The learned counsel for the appellant/accused raised

multiple contentions to upset the verdict impugned. According to the

learned counsel for the appellant/accused, as regards to entrustment of 120

quintals of levy sugar in the custody of the accused, there is no convincing

evidence. It is argued that as on 18.04.1991, the accused was not in charge

of keeping levy sugar and the said charge was held by PW1, Kusumam

and thereafter a document produced as Ext.P1 was created by PW1 and

other officials to show that the charge of levy sugar was held by the

accused as on 18.04.1991 at a subsequent stage, i.e on 24.04.1991 to fasten

liability of missing sugar on the accused. That apart, Ext.P1 report was not

sufficiently proved. As regards to the endorsement on the reverse side of

Ext.P2, the carbon copy of Goods Transfer Order (GTO) receipt notes 2025:KER:74540

dated 18.04.1991, the same is suspicious, false and fabricated one and thus

it could not be considered as a genuine one. If the accused had a motive to

misappropriate the sugar, he could have put a different sign deliberately.

It is pointed out further that Ext.P2 was kept illegally by the contractor

PW12 without handing over the same to KSCSC for getting GTRN and no

explanation in this regard was brought by the VACB and thus Ext.P2

could not be found as genuine document. The Special Court went wrong

relying on the evidence of PW6 and PW15 to find that the accused

misappropriated 120 quintals of levy sugar, as alleged by the prosecution

and found that he had committed offences punishable under Sections 409

and 477A of the IPC and also under Section 13(1)(c) r/w 13 (2) of the PC

Act, 1988. It is pointed out that, on evaluation of prosecution case

supported by Exts.D1 and D2 along with the written statement filed by the

appellant/accused during his examination under Section 313(1)(b) of

Cr.P.C would show that he was innocent and prosecution miserably failed

to prove the case against the appellant. It is contended further that since

the sugar load was reached after 5.30 p.m, if there occurred unloading of

the same, there must be evidence showing the payment of unloading fee to 2025:KER:74540

the workers of the union and the amount would be double because the time

of unloading to be treated as over time as far as the labourers were

concerned.

7. Disspelling this argument, the learned Special Public

Prosecutor would submit that Ext.P9(f) and Ext.P2 would show that 120

quintals of levy sugar was dispatched from Kollam depot to Cherthala

depot of the KSCBC on 18.04.1991 and the accused made an endorsement

on Ext.P2 stating that he had received the sugar. Ext.P1 would indicate

that he was in charge of sugar section on that day. That apart, evidence of

PW6 along with Ext.P1 report corroborated that the endorsement was

made by the appellant himself. Thus the prosecution evidence would

convincingly show that on getting the entrustment of 120 quintals of sugar,

the accused diverted the same to PW4, PW5 and PW7 and obtained money

therefrom to the tune of Rs.1,02,000/-. It is also pointed out that though

PW4, PW5 and PW7 were examined to prove that they have obtained

sugar from the appellant, they did not support the prosecution case as they

denied having received any sugar from PW1. According to the learned

Public Prosecutor the allegation against the appellant is proved beyond 2025:KER:74540

reasonable doubt. Thus the conviction and sentence imposed by the

Special Court are only to be confirmed.

8. In response to the arguments tendered, the questions

raised for consideration are:

(i) Whether the Special Court is justified in holding that the

accused committed the offence punishable under Section 409 of IPC?

(ii) Whether the Special Court rightly held that the accused

committed the offence punishable under Section 477A of IPC?

(iii) Whether the Special Court rightly held that the accused

committed the offence punishable under Section 13(1)(c) r/w 13(2) of

PC Act, 1988?

(iv) Is it necessary to interfere with the verdict impugned?

         (v)       The order to be passed?

Point Nos.(i) to (v)

9. The prime witness in this case is PW1. PW1 deposed

that she was the Senior Assistant in Cherthala Depot of KSCSC from 1988

to 1993 and she held the charge of distribution and stock of sugar till

17.04.1991. She deposed that after 17.04.1991, the said charge was 2025:KER:74540

handed over to the accused and Ext.P1 is the charge handing over report.

It was through her, Ext.P3 attendance register maintained at the office

marked to show that the accused was present in Depot on 18.04.1991.

According to PW1, the contractor from P&V Associates approached her

stating that they didn't get GTRN and found that on 18.04.1991, 5 loads of

sugar and on 19.04.1991, 2 loads of sugar were received from them.

According to her, Ext.P4 is the GTO receipt note book. PW1 deposed that

Ext.P2 is the carbon copy of GTO dated 18.04.1991 and the accused

signed on the backside of Ext.P2 with endorsement that "received 120

bags". According to PW1, when she asked this aspect to the accused, who

was in charge of GTO on 18.04.1991, he stated that he didn't know. She

also deposed about the procedure of getting custody of stocks. According

to her, the driver or cleaner of the lorry would bring the load along with

GTO and on receipt of the load, the GTRN would be issued for the loads

to be delivered till 5 p.m. When loads would be received after 5 p.m, it

would be written on the back of GTO that the goods were received. It was

through her, Ext.P5 stock register maintained in the office was marked.

According to her, as per Ext.P5(a), page No.351 of Ext.P5 stock register, 2025:KER:74540

in between 18.04.1991 and 19.04.1991, 1020 quintals of sugar was

brought and as per Ext.P4(a) to (g), the corresponding GTRNs were

separately marked. However, 120 quintals of sugar received by the

accused were not accounted.

10. PW2 examined in this case was the manager in the

inspection wing of KSCSC, from 1989 onwards. According to him, he

had conducted an inspection on 10.04.1992 at Cherthala Depot in

connection with missing of 120 quintals of levy sugar and Ext.P8 is the

report filed by him. He also submitted that he had gone to Kollam depot

and inspected the GTOs and Ext.P9 series are the 8 GTOs inspected by

him. He further said that on 18/04/1991, 720 quintals of sugar and on

19/04/1991, 220 quintals of sugar were supplied from Kollam depot to

Cherthala depot, but on verification of the GTRN and stock register in

Cherthala depot, it was found that on 18/04/1991 and 19/04/1991 only 820

quintals of sugar were received. He further deposed that in the stock

was reported so as per Ext.P8.

11. It is seen that Ext.P9(f) is the GTO (Goods Transfer 2025:KER:74540

Order) original and Ext.P2 is the duplicate carbon copy. So Ext.P9(f) and

Ext.P2 would show that 120 quintals of levy sugar was dispatched from

Kollam depot to Cherthala depot. The contention of the accused is that the

goods were not received by the accused in Cherthala depot and the

allegation is that PW1, the contractor, driver and cleaner or some person in

Kollam depot misappropriated that sugar. Although the prosecution proved

that 120 quintals of sugar was dispatched from Kollam depot, it was not

accounted in Cherthala depot.

12. Apart from the evidence of PW1 and PW2, the evidence

of PW6, PW14, PW15 and PW16 also relevant to decide the case. In this

matter, endorsement on the backside of Ext.P2 was forwarded for expert

opinion to ascertain the handwriting therein along with Ext.P16 series

specimen hand-writings and signatures taken from the accused. Ext.P15 is

the report submitted by PW6, who was the Assistant Director (documents)

in the Forensic Science Laboratory. PW6 deposed that he had examined

the questioned document carefully and thoroughly and compared the same

with the standard documents in all respect. He further testified that the

result of the examination was that the person who wrote the blue enclosed 2025:KER:74540

standard writings and signatures stamped and marked as S1 to S3, and

S1(a) to S3(a) and Al to A12 also wrote the red enclosed questioned

writings and signatures similarity stamped and marked as Q1. Q1 is the

endorsement on the reverse side on Ext. P2. S1 to S3 and S1(a) to S3(a)

are marked as Ext.P16 series Al to A12 are the initials of the accused in

Ext.P3 attendance register. So as per the opinion given by PW6 the

endorsement on the back of Ext.P2 that "received 120 bags" and the initial

with date 18/04/1991 are in the hand writing of the accused.

13. While challenging Ext.P15 report, it is submitted by the

learned counsel for the accused that the same is only an opinion evidence

in the form of a corroborative nature and, therefore, the same has no

independent existence unless there is substantive evidence to prove the

same. This legal position is not in dispute. Anyhow, as per Ext.P15, the

expert opined that the endorsement "received 120 bags" and the initial

with date 18.04.1991 are in the handwriting of the accused. Though

during cross examination of PW6 it was attempted to elicit that

handwriting of one person may show variation in some handwriting

characteristics with passage of time, the expert replied that variation would 2025:KER:74540

be always within the range of natural variation and in the present case the

variation found was only within the range of natural variation.

14. In this case, the Special Court had given emphasis to the

expert report supported by the substantive evidence of PW1, PW2 and

PW14 with the aid of the evidence given by PW15 and PW16 to hold that

the accused received 120 quintals of sugar on 18.04.1991 and thus the said

quantity of sugar was entrusted with the accused.

15. It is pointed out by the learned counsel for the

appellant/accused that there was correction as regards to the date

`17.04.1991' in Ext.P1 to show the same as created on 25.04.1991, which

would show that the accused held the charge of stock distribution and

stock of sugar as on 18.04.1991. In this connection, Exts.D1 and D2 are

also relevant. Ext.D1 is the statement given by the accused to PW2 at the

time of departmental enquiry and it was stated therein that the accused

handed over the charge to a new person on 17.04.1991 itself. At the same

time, he had a case that he took charge of sugar section only on

24.04.1991. Ext.D2 is the copy of the explanation given by the accused to

the Managing Director, KSCSC, during the disciplinary proceedings.

2025:KER:74540

Therein also he had a contention that he had transferred rice and provision

on 17.04.1991 and he took charge of the sugar section on 25.04.1991,

showing the same as 17.04.1991 to suit to certain formalities and

adjustments. The Special Court discussed this fact and observed in

paragraph 20 as under:

"20. xxxx xxxx xxxx xxxx xxxx xxxx xxxx A question may arise if he already handed over the section he was dealing to the new person on 17/04/1991 itself, what he was doing till 25/04/1991. In cross examination of PW1 no question is asked why even though it is written in Ext.Pl that charge was handed over on 17/04/1991, the charge was actually handed over only on 25/04/1991. It is true it is asked that by the time '2' is written in Ext.P1, due to the pressure and out of the good relationship between the employees in the office he took charge on 25/04/1991 by writing the date 17/04/1991. PW1 denied the same. It doesn't appear that the said suggestion is probable. It is to be noted that in another part of the cross examination it is suggested that the accused was a strict person, he was not amenable to show any compromise, he was not ready to act against law and honesty and so the Assistant Manger, PW1 and helpers Anuradha & Sathyan were not in good term with him. PWI replied that she was in good terms with accused as a co-employee. So the accused could not bring out that there was any necessity for him to write that he took charge on 17/04/1991 when actually he took charge only on 25/04/1991. So the testimony of PW1 and Ext.P1 would clearly prove that the accused took charge of the sugar section on 17/04/1991 itself.

2025:KER:74540

So the accused was entrusted with the sugar section on 17/04/1991 itself. Learned counsel for the accused mentioned the ruling reported in AIR 1999 SC 1301 and AIR 1983 SC 631 and argued that in prosecution of offence of criminal breach of trust, proof of entrustment is necessary and that there should be legal and independent evidence with regard to the entrustment. In the present case Ext.P11 shows that office order was issued on 12/04/1991 deputing the accused in the levy sugar section and Ext.P1 shows that the accused was handed over charge of the sugar section on 17/04/1991. So the prosecution proved the entrustment of that section with the accused. The evidence of PW16 to a limited extend and the endorsement on the back of Ext.P2 show that he received 120 bags of sugar on 18/04/1991. The expert opined that the person who wrote the admitted writings and signatures also wrote the disputed writing and signatures i.e, the accused himself endorsed on the back of Ext.P2. So the prosecution could prove that the accused was entrusted with the sugar section and he received 120 bags of sugar on 18/04/1991."

The observation of the Special Court as extracted above could only to be

justified.

16. PW14 deposed that his father had a lorry bearing register

No.KEF 3479, that during 1991 one Sahadevan was driving that lorry and

that he used to go as cleaner in that lorry. He didn't fully support the

prosecution case. But PW14 supported the prosecution case to some

extent. He testified that he had gone to Cherthala depot from Kollam 2025:KER:74540

railway goods yard with one load of sugar, that the same was unloaded in

the godown at Cherthala and the person therein signed on the paper after

unloading the goods, showing acceptance of the same. He didn't

specifically say who was the person there in signed on the back of Ext.P2.

To the questions whether he had given statement to the Vigilance Police

that he went to the godown with GTO and that after unloading the goods

he got endorsement on the backside of GTO that the goods were received,

he replied that he didn't remember. Then the Additional Legal Advisor

declared him as hostile to the prosecution. The contradictory statements

given by him to the Vigilance Police were marked as Ext.P28 and P28(a).

As argued by the counsel for the accused the said statements were of no

significance.

17. But on further examination of PW14 by the Additional Legal

Advisor, he deposed that 120 bags of sugar was unloaded in that godown

and there was an officer from the Civil Supplies Corporation at that time,

but he said that he didn't give the name of that person to the Vigilance

Dy.S.P. When he was asked whether he would remember that officer, he

replied that he didn't remember, but later he saw the said officer at 2025:KER:74540

Vigilance office. He didn't identify the accused at the dock as the officer

who was present in the Cherthala Civil Supplies Godown at the time of

unloading the disputed sugar. But in cross examination by the counsel for

the accused, he replied that Ext.P2 is the GTO given to him from Kollam

depot, that since there was nobody in Cherthala depot office to make seal

in that GTO, he returned the same to the party at Kollam. When the

counsel for the accused interrogated PW14 suggesting that he did not

know that the endorsement on the back side of Ext.P2 (120 bags received)

by the officer at Cherthala depot, he replied that the said endorsement was

made by the officer in Cherthala depot. So during the cross examination

for the accused, it is brought out from PW14 that he brought Ext.P2 GTO

from Kollam depot to Cherthala depot and that officer in Cherthala depot

made endorsement on the back of Ext.P2 after the goods were delivered in

Cherthala Depot.

18. Now the question is, who received the said 120 bags of

sugar at Cherthala depot. PW 15 deposed that he was the managing partner

of P & V Associates, Kollam, that they used to handle goods like rice &

sugar from Kollam depot of Civil Supplies Corporation, that on 2025:KER:74540

18/04/1991 8 loads of sugar were sent from that depot to Cherthala depot

and Ext.P9 series are the GTOs in respect of that loads. He further said that

Ext.P2 is the GTO in respect of 120 bags of sugar sent to Cherthala depot

on 18/04/1991 from Kollam railway goods shed and it contains his

signature and that the GTRN in respect of the same was not received. He

enquired about the same at Cherthala depot and it was told that such a load

was not received there. He enquired about this aspect to his driver and it

was replied that there was delay in unloading the goods and unloading was

completed during night. Therefore, GTRN was not obtained on that day

and the next day the endorsement was made on the back side of Ext.P2

that the load was received there. He also said that he asked about the same

to the officer Smt.Kusumam in Cherthala, then she enquired the same with

Ponnan (accused), then she replied that she had asked Ponnan (accused)

who was in charge of that section regarding this aspect and thereafter she

told that such load of sugar was not unloaded there. He also said that

Ext.P2 contains the signature of the driver and the clerk at Kollam

Regional depot. In chief examination he said that since it was a busy time,

delay was caused in getting GTRN. In cross examination he said that he 2025:KER:74540

had gone to the Cherthala depot enquirying about GTRN only towards the

end of the contract period and that he didn't give any complaint for a

period of one year.

19. Ext.P2 contains the signature of PW16, the driver. There

is no dispute that Ext. P2 is the GTO for transporting the disputed sugar.

The counsel for the accused argued that the original of Ext.P2 is not

produced by the prosecution. But as pointed out by Additional Legal

Advisor Ext.P9(f) is the original GTO kept at Kollam depot and Ext. P2 is

the duplicate of the same. On evaluating the evidence of PW14 to 16 in its

entirety, the prosecution established that 120 bags of levy sugar was

unloaded in the godown of Cherthala depot of Civil Supplies Corporation

in the lorry brought by PW16. Most importantly the evidence of PW14

and PW16 would show that it was the officer in charge of the godown

received the loads as per Exts.P2 and P9(f). At this juncture, the evidence

of PW1, PW2 and PW6 along with Ext.P15 expert opinion become

relevant. These evidence categorically proved that it was the accused who

received the load.

20. The prime contention raised by the learned counsel for 2025:KER:74540

the appellant/accused is that since no GTRN was obtained for want of

valid acknowledgment of sugar in the Cherthala Depot, the allegation that

the 120 quintals of sugar was entrusted with the accused is an

impossibility, rather the same was not proved by the prosecution. This

contention was negatived by the Special Court holding that when the

evidence available substantially proved that the accused received the

sugar, the accused could not take advantage of the non action on the part

of the contractor to get GTRN as a ground to avoid his liability as well as

entrustment. In fact, the finding so entered by the Special Court is only to

be justified.

21. Coming to the contention raised by the accused that the

misappropriation of 120 quintals of sugar was at the instance of PW1, the

contractor, the driver, the cleaner and clerk of Kollam Depot and the

accused is not responsible for the same, this contention mainly raised on

the ground that no GTRN was issued to show entrustment of the sugar at

the hands of the accused. It is true that PW15 was the contractor of the

KSCSC and evidently GTRN was not issued from Cherthala Depot for

multiple reasons including the inaction on the part of PW15 to ask the 2025:KER:74540

same in time. Similarly as contended by the learned counsel for the

appellant as regards to unloading and payment of normal charge or double

charge as over time, no convincing evidence forthcoming, but in Ext.P10

enquiry report, PW3 noted that the claims towards loading and unloading

were done in a week by settlement on the last working day of that week

and he noticed claim of unloading charge of Rs.1,120/- on 20.04.1991 for

unloading 1120 bags of sugar vide voucher No.46 based on the GTRN was

written from 18.04.1991 to 20.04.1991. Thus it appears that GTRN is the

basic document upon which unloading charges would be claimed and in

the instant case, GTRN was not issued. Therefore, the unloading charges

might be omitted to be claimed for want of GTRN. Thus this aspect is of

least significance in this case.

22. On re-appreciation of the evidence discussed herein, the

prosecution succeeded in proving that 120 quintals of levy sugar was

dispatched from Kollam Depot to Cherthala Depot of the KSCSC on

18.04.1991, as evident from Ext.P9(f) and Ext.P2. The endorsement made

by the accused on the backside of Ext.P2 showing receipt of the same was

proved by the prosecution by the substantive evidence of PW1, PW2, 2025:KER:74540

PW14, PW16 and through Ext.P9(f) and Ext.P2 GTO as well as by the

corroborative evidence in the form of FSL report tendered in evidence that

PW6, the expert, stating that the entry on the back side of Ext.P2 that

"received 120 bags" was made by the accused with his initial. That apart,

Ext.P1 established the fact that the accused was in charge of sugar section

on 18.04.1991. Thus the contra-contentions raised by the accused have no

legs to stand and are rejected.

23. Section 409 of IPC deals with `Criminal breach of trust

by public servant, or by banker, merchant or agent', wherein it has been

provided that "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.

24. The essential ingredients to prove an offence under

Section 409 of IPC are:

2025:KER:74540

(i) That the accused was entrusted with the property in any

manner;

That such property was in his dominion, in his capacity of a

public servant, or as banker, merchant, factor, broker, attorney or agent, in

the way of his business in such capacity;

(ii) That the accused committed breach of trust in respect of

that property.

25. No doubt, the gravamen of the offence under Section 409

of the Indian Penal Code, 1860 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. The section 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 criminal breach of trust; but something more than that 2025:KER:74540

is required to bring home the dishonest intention. There should be some

indication which justifies a finding that the accused definitely had the

intention of wrongfully keeping the Government out of the money.

Where, under the rules, a public servant is required to lodge in the

treasury, any Government money, in excess of that shown due to

Government by the registers in his hands and the public servant removes

the excess from the office cash-box, he is guilty of misappropriation.

26. Both Section 409 IPC so far as public servant is

concerned and Section 13(1)(c) Prevention of Corruption Act 1988, which

is a verbatim reproduction of Section 5(1)(c) of the Prevention of

Corruption Act, 1947 run on the same track.

27. Here the accused in his capacity as a public servant was

entrusted with 120 quintals of levy sugar, as evident from Ext.P2 and

Ext.P9(f) and obtained domain over the same and committed breach of

trust without entering the same in the stock register Ext.P5 and also

making the same as part of the stock, as deposed by PW1 and PW2. Thus

the ingredients to attract Section 409 of IPC have been proved by the

prosecution, beyond reasonable doubt.

2025:KER:74540

28. In the decision reported in [2025 KHC OnLine 806 :

2025 KHC 806 : 2025 KER 55049 : 2025 KLT OnLine 2504], Mathew

K.M v. State of Kerala, referring paragraph 14 of the decision in

Vijayakumar K. v. State of Kerala reported in 2016 KHC 635 : 2016 (4)

KHC SN 30 : 2016 (2) KLD 498 : 2016 (4) KLT SN 76, this Court held

that, once it is proved by the prosecution that there was entrustment and

there was no proper accounting of the amount entrusted, then the burden

shifts to the accused to prove that there was no misappropriation and

explain the irregularities found in the disbursement. Further if entrustment

is proved and explanation given by the accused is not satisfactory or there

was no proper explanation, then it can be presumed that the accused had

committed the offence of criminal breach of trust and misappropriation.

The modus operandi of the accused, how he committed the

misappropriation etc. need not be proved by the prosecution. The

fraudulent intention of the accused can be inferred only from the attending

circumstances and those things cannot be proved by the prosecution by

direct evidence and it has to be inferred from the circumstantial evidence

adduced by the accused on this aspect. The same ingredients of criminal 2025:KER:74540

breach of trust and misappropriation have to be proved by the prosecution

for convicting the accused for the offences under Section 13(1)(c) of the

P.C Act, 1988 as well. This was so held in the decisions reported in

Jaikrishnadas Manohardas Desai and another v. State o Bombay, 1960

KHC 694: AIR 1960 SC 889: 1960 (3) SCR 319: 1960 CriLJ 1250,

Krishan Kumar v. Union of India, 1959 KHC 635: AIR 1959 SC 1390:

1960 (1) SCR 452 1959 CriL) 1508, State of Kerala v. Vasudevan

Namboodiri, 1987 KHC 518: 1987(2) KLT 541: 1987 KLJ 270: 1987(1)

KLT SN 7, Bagga Singh v. State of Punjab, 1996 KHC 3288: 1996 CriLJ

2883, Vishwa Nath v. State of J & K., 1983 KHC 420 : AIR 1983 SC

174 : 1983 (1) SCC 215 : 1983 SCC (Cri) 173 : 1983 CriLJ 231, Om Nath

Puri v. State of Rajasthan, 1972 KHC 414 : AIR 1972 SC 1490 : 1972 (1)

SCC 630 : 1972 SCC (Cri) 359 1972 (3) SCR 497 : 1972 CriLJ 897, T.

Ratnadas v. State of Kerala, 1999 KHC 2074 : 1999 CriLJ 1488, State of

Rajasthan v. Kesar Singh, 1969 CriLJ 1595, Roshan Lal Raina v. State

of Jammu & Kashmir, 1983 CriLJ 975 and Raghavan K. v. State of

Kerala, 2012 KHC 420.

29. Section 477A of IPC deals with `Falsification of 2025:KER:74540

accounts', wherein it has been provided that 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. In the instant case even though on receipt of 120 quintals of

levy sugar the accused was duty bound to enter the same in the records, he

omitted to do the same and in turn the said 120 quintals of sugar

corresponding to Rs.1,02,000/- was misappropriated by him. Therefore

the learned Special Judge is justified in holding that the accused

committed the offence punishable under Section 477A of IPC. In the

above backdrop, misappropriation dealt under Section 13(1)(c) read with 2025:KER:74540

13(2) of the PC Act, 1988 also proved by the prosecution. Since the

prosecution evidence categorically established the offences committed by

the accused beyond reasonable doubt, the conviction imposed on the

accused is not liable to be interfered with and thus the conviction is liable

to be confirmed.

30. Coming to the sentence, the same can be modified

considering the request of the learned counsel for the appellant.

Punishment provided for the offence punishable under Section 477A of

IPC is a term which may extend to 7 years or with fine or with both.

Similarly for the offence punishable under Section 409 of IPC, the accused

shall be punished with imprisonment for life or with imprisonment of

either description for a term which may extend to 10 years and shall also

be liable to fine. For the offence punishable under Section 13(1)(c) of the

PC Act, 1988 the punishment provided under Section 13(2) of the PC Act,

1988 shall not be less than one year and also liable to fine. Having

considered the above aspect, I am inclined to reduce the sentence.

31. In the result, the Appeal stands allowed in part. The

conviction imposed by the Special Court is confirmed, but the sentence 2025:KER:74540

stands modified as under:

"(1) The appellant/accused is sentenced to undergo rigorous

imprisonment for two years and fine of Rs.1 lakh for the offence

punishable under Section 13(1)(c) r/w 13(2) of the PC Act, 1988, in

default, to undergo rigorous imprisonment for six months.

(2) The appellant/accused is sentenced to undergo rigorous

imprisonment for two years and fine of Rs.1 lakh for the offence

punishable under Section 409 of IPC, in default, to undergo rigorous

imprisonment for six months.