Kerala High Court
Padmaprasad vs State Of Kerala on 13 October, 2025
2025:KER:75980
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 13TH DAY OF OCTOBER 2025 / 21ST ASWINA, 1947
CRL.A NO. 140 OF 2013
AGAINST THE COMMON JUDGMENT DATED 06.12.2012 IN C.C. NO.26 OF 2009 ON THE
FILES OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
PADMAPRASAD
ASSISTANT MOTOR VEHICLE INSPECTOR, NEYYATTINKARA.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.MANU SEBASTIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE ND ANTI
CORRUPTION BUREAU, THIRUVANANTHAPURAM,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2025, ALONG
WITH CRL.A.NO.141 OF 2013, THE COURT ON 13.10.2025 DELIVERED THE
FOLLOWING:
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Crl.A. Nos. 140 & 141 of 2013
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 13TH DAY OF OCTOBER 2025 / 21ST ASWINA, 1947
CRL.A NO. 141 OF 2013
AGAINST THE COMMON JUDGMENT DATED 06.12.2012 IN C.C. NO.27 OF 2009 ON
THE FILES OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
PADMAPRASAD
ASSISTANT MOTOR VEHICLE INSPECTOR, NEYYATTINKARA.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.MANU SEBASTIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND
ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2025,
ALONG WITH CRL.A.NO.140 OF 2013, THE COURT ON 13.10.2025 DELIVERED THE
FOLLOWING:
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Crl.A. Nos. 140 & 141 of 2013
3
"C.R"
COMMON JUDGMENT
Dated this the 13th day of October, 2025
These criminal appeals have been filed under
Section 374(2) of the Code of Criminal Procedure, 1973, by
the sole accused in C.C. Nos.26 and 27 of 2009 on the files
of the Court of the Enquiry Commissioner and Special
Judge, Thiruvananthapuram, challenging the conviction and
sentence imposed by the Special Judge against him as per
the common judgment dated 06.12.2012. The State of
Kerala, represented by the Public Prosecutor is arrayed as
the sole respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the
common verdict under challenge and the records of the
Special Court.
3. Parties in these appeals shall be referred as
'accused' and 'prosecution', hereafter.
4. The prosecution allegation in C.C. No.26 of 2009
is that, the accused, while working as an Assistant Motor
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Vehicle Inspector, Sub Regional Transport Office,
Neyyattinkara, during the period from 11.04.2003 to
18.03.2004, was authorized to collect fees and fines in
respect of the vehicles, had collected Rs.4,93,400/- being
the fees and fines directly and through other officials in the
office, using TR5 receipts, which were entrusted to him and
possessed by him during the period from 04.04.2003 to
12.03.2004. It is alleged further is that, out of Rs.4,93,400/-
collected by the accused, he had remitted only
Rs.2,12,190/- in the office and he dishonestly and
fraudulently misappropriated the balance amount of
Rs.2,81,210/-. It is also alleged that the accused also
falsified the accounts, namely, 10 original TR5 receipts in
order to misappropriate a sum of Rs.15,700/- entrusted to
him. On this premise, the prosecution alleges commission
of offences punishable under Section 13(1)(c) read with
13(2) of the Prevention of Corruption Act, 1988 [hereinafter
referred as 'P.C. Act' for short] and under Sections 409, 420,
468, 471 and 477-A of the Indian Penal Code [hereinafter
referred as 'IPC' for short], by the accused.
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5. Similarly, the prosecution case in C.C. No.27 of
2009 is that, the accused, while working as an Assistant
Motor Vehicle Inspector, Sub Regional Transport Office,
Neyyattinkara, during the period from 30.03.2004 to
24.06.2004, was authorized to collect fees and fines in
respect of the vehicles, had collected Rs.56,310/- during
the period from 17.04.2004 to 25.06.2004 and he had
remitted only Rs.47,410/- in the office and he dishonestly
and fraudulently misappropriated the balance amount of
Rs.8,900/-. On this premise, the prosecution alleges
commission of offences punishable under Section 13(1)(c)
read with 13(2) of the P.C. Act and under Sections 409, 420
and 477-A of the IPC, by the accused.
6. The Special Court framed charge for the offences
under Section 13(1)(c) read with 13(2) of the P.C. Act and
under Sections 409 and 477-A of the IPC in C.C. No.26 of
2009 and under Section 13(1)(c) read with 13(2) of the
P.C. Act and under Section 409 of the IPC in C.C. No.27 of
2009. Thereafter, the Special Court conducted joint trial of
these cases, recorded evidence and tried the matter.
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During trial, PWs 1 to 18 were examined and Exts.P1 to 46
were marked on the side of the prosecution. After
questioning the accused under Section 313(1)(b) of Cr.P.C,
DWs 1 and 2 were examined and Exts.D1 to D7 were
marked on the side of accused as defence evidence.
7. On appreciation of evidence, the Special Court
found that the accused was guilty for the offences
punishable under Section 13(1)(c) read with 13(2) of the
P.C. Act and under Sections 409 and 477-A of the IPC in C.C.
No.26 of 2009. Further, it is found by the learned Special
Judge that the accused was guilty for the offences
punishable under Section 13(1)(c) read with 13(2) of the
P.C. Act and under Section 409 of the IPC in C.C. No.27 of
2009. Accordingly, he was convicted for the said offences
and sentenced as under:
In C.C. No.26 of 2009:
Considering the facts and circumstance of
this case, the accused is sentenced to undergo
rigorous imprisonment for two years and to pay
a fine of ₹3,00,000/- (Rupees Three Lakh only)
and in default of the payment of fine to undergo
rigorous imprisonment for six months under
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S.13(1)(c) r/w S.13(2) of P.C. Act, 1988. The
accused is also sentenced to undergo rigorous
imprisonment for one year and to pay a fine of
₹10,000/- (Rupees Ten thousand only) and in
default of payment of fine to undergo rigorous
imprisonment for three months under S.409 of
I.P.C. The accused is also sentenced to undergo
rigorous imprisonment for one year and to pay
a fine of ₹10,000/- (Rupees Ten thousand only)
and in default of payment of fine to undergo
rigorous imprisonment for three months under
S.477-A of I.P.C. It is directed that the
substantive sentence of imprisonments shall
run concurrently. Set off under S.428 of Cr.P.C. is
allowed.
In C.C. No.27 of 2009:
Considering the facts and circumstance of
this case, the accused is sentenced to undergo
rigorous imprisonment for one year and to pay
a fine of ₹10,000/- (Rupees Ten Thousand only)
and in default of the payment of fine to undergo
rigorous imprisonment for three months under
S.13(1)(c) r/w S.13(2) of P.C. Act, 1988. The
accused is also sentenced to undergo rigorous
imprisonment for one year and to pay a fine of
₹10,000/- (Rupees Ten thousand only) and in
default of payment of fine to undergo rigorous
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imprisonment for three months under S.409 of
I.P.C. It is directed that the substantive sentence
of imprisonments shall run concurrently. Set off
under S.428 of Cr.P.C. is allowed.
8. While impeaching the impugned common
judgment, it is pointed out by the learned counsel for the
appellant/accused that, in order to prove entrustment of
Exts.P11 to P27 TR5 receipts to the accused, PWs 5 and 6
given evidence and it has come out in evidence that, apart
from the accused, PWs 4 and 9 also collected fees and fines
using the said TR5 receipts. Therefore, the liability of
misappropriation could not be attributed solely as against
the accused and the witnesses cited in this case ought to
have been arrayed as accused. It is pointed out by the
learned counsel for the accused further that, merely relying
on the evidence of PWs 5 and 6, supported by the evidence
of PWs 3 and 5 to 8, the Special Court found that the
accused misappropriated Rs.2,81,210/-, 15,700/- and
8,900/-, as alleged by the prosecution. It is further pointed
out that, the receipt of TR5 receipts by the accused was
proved through the evidence of PW5 and 6. The FSL report
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in this regard proved through the Scientific Assistant
(PW17), discussed in the impugned common judgment, in
no way consistently attributed that, it was the accused,
who obtained undue pecuniary advantage by
misappropriating the amount collected as fees and fines
and therefore, the scientific evidence is against the
prosecution. According to the learned counsel for the
accused, since the prosecution failed to prove entrustment
of TR5 receipts to the accused and consequential use and
collection of money by the accused, the finding of the
Special that the accused committed the offences
punishable under Section 13(2) read with 13(1)(c) of the
P.C. Act and under Sections 409 and 477-A of the IPC in
both these cases is erroneous and the same would require
interference.
9. The learned Public Prosecutor argued that, in
these cases, entrustment of Exts.P11 to P27 TR5 receipt
books is established by the evidence of PWs 2 to 9 and
through Ext.P1. That apart, in Ext.P10 stock register,
receipt of TR5 receipts by the accused also endorsed and
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proved. It is submitted that, PWs 4 and 9 also collected
some amounts by using the TR5 receipts and they have
given evidence stating that they have entrusted back the
money to the accused. It is also pointed out by the learned
Public Prosecutor that, PW10 examined in this case
categorically stated the mode of collection of money by the
accused.
10. It is argued by the learned Public Prosecutor
further that, as alleged by the prosecution in C.C. No.26 of
2009, Rs.2,81,210/- and in C.C. No.27 of 2009, Rs.8,900/-
were misappropriated by the accused. According to the
learned Public Prosecutor, in these cases, Ext.P1 proved
through PW1 and Ext.P35 Enquiry report proved through
PW10, also justified the prosecution case, where
misappropriation was found against the accused.
11. It is also submitted by the learned Public
Prosecutor that, Ext.P10 stock register of TR5 books would
show that it was the accused, who received the said TR5
receipts to collect fees and fines, as alleged by the
prosecution. It is pointed out by the learned Public
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Prosecutor further that, as deposed by PWs 4 and 9, they
also collected fees and fines occasionally, using the TR5
receipts, during the relevant period and they had given
consistent evidence that, the money so collected using TR5
receipts was entrusted back to the accused. According to
the learned Public Prosecutor, the misappropriation could
not be detected during the tenure of the accused in the
office and it was detected by PW10, after transfer of the
accused from the office, where the occurrence took place.
In support of the prosecution materials, the learned Public
Prosecutor has given reliance on Ext.P35 Enquiry Report
against the accused, submitted by PW10, proved through
him to contend that misappropriation of the amounts was
found during departmental enquiry also. Thus, entrustment
of TR5 receipts to the accused and collection of fees and
fines by him and by PWs 4 and 9 were proved in this case,
beyond reasonable doubt. In such a case, the conviction
and sentence imposed by the learned Special Judge as
against the accused are liable to sustain, is the submission
of the learned Public Prosecutor.
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12. In view of the rival submissions, the questions
arise for consideration are:
1. Whether the Special Court is justified in
finding that the accused/appellant committed the
offence punishable under Section 13(1)(c) read
with 13(2) of the P.C. Act, 1988, in C.C. No.26 of
2009?
2. Whether the Special Court is justified in
finding that the accused/appellant committed the
offence punishable under Section 409 of the IPC
in C.C. No.26 of 2009?
3. Whether the Special Court is justified in
finding that the accused/appellant committed the
offence punishable under Section 477-A of the
IPC in C.C. No.26 of 2009?
4. Whether the Special Court is justified in
finding that the accused/appellant committed the
offence punishable under Section Section 13(1)(c)
read with 13(2) of the P.C. Act, 1988, in C.C.
No.27 of 2009?
5. Whether the Special Court is justified in
finding that the accused/appellant committed the
offence punishable under Section 409 of the IPC
in C.C. No.27 of 2009?
6. Whether the verdict of the Special Court
would require interference?
7. Order to be passed?
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13. Point Nos.1 to 5:- In order to address these
questions, it is necessary to evaluate the evidence, in this
case. PWI deposed that, he was working as Joint RTO in Sub
Regional Transport Office, Neyyattinkara during the period
9.6.2004 to 28.2.2005. Ext.P1 is the copy of audit report
pursuant to the audit conducted on 23.9.2004 at his office.
According to PW1, Ext.P1 was forwarded to Transport
Commissioner, Thiruvananthapuram and as per Ext.P2,
copy of the proceedings of Transport Commissioner, he was
directed to register a case against the accused in respect of
serious irregularities pointed out in the Audit Report. Ext.P3
is the copy of letter sent by PW1 to Sub Inspector,
Neyyattinkara, in pursuance of the direction of the
Transport Commissioner. Ext.P4 is the copy of FIR registered
by the Sub Inspector, Neyyattinkara Police Station. Ext.P5 is
the copy of inventory as per which Fee Acceptance
Registers, Stock Register of TR5 Receipt Books and 26 TR5
Receipt Books issued to the accused and three submissions
given by the accused were produced before the
Investigating Officer. While, Exts.P6 to P9 are volume Nos.3
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to 6 of Fee Acceptance Registers, Ext.P10 is the copy of
Stock Register. Exts.P11 to P27 are the 17 TR5 receipt
books alleged to have been issued to the accused and
Ext.P28 is the inventory as per which the three submissions
alleged to have been given by the accused were produced
before the Investigating Officer. Ext.P29 is another
inventory as per which PW1 had produced the transfer and
posting order of the accused. Exts.P30 and P31 are the
transfer and posting order and joining report of the accused
which conclusively prove that during the relevant period,
the accused was working as AMVI at Sub Regional Transport
Office, Neyyattinkara. In cross-examination, PW1 admitted
that during his tenure, the accused was transferred to
Parassala and necessary relieving letter for that purpose
was issued by him. His version is that at that time he was
not aware about the liability of the accused. He had also
stated that there was no practice of maintaining Office
Order Book and TR5 Deposit Register at his office. It was
also deposed by PW1 that an internal audit was also
conducted at his office. PW1 had further stated that it was
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the responsibility of the Head Accountant to receive back
TR5 receipt books issued to the AMVI and MVI. In re-
examination, PW1 had deposed that another case as
C.C.25/2009 was pending before the Court against the
accused and copies of the documents produced in this case
are the attested copies of the documents produced in the
previous case. In cross-examination, it was brought out
from PW1 that in Ext.P12, receipt Nos.14 to 38 have been
used by another AMVI, namely, Joyson.
14. In addition to PW1, the Head Accountant of the
office during the period 29.8.2003 to 2006 was examined
as PW2. PW2 deposed that the amounts collected by AMVI
as per TR5 Receipt Books would be entrusted with the Head
Accountant, who was expected to make entries in Fee
Acceptance Register. It was further deposed by her that
towards fee collected for issuance Certificate of Fitness
issued by AMVI, duplicate receipts would be pasted in CF
Register. According to PW1, there was no bar for issuing
more than one TR5 Receipt Books to the AMVI. She had also
clarified that at the time of vehicle inspection and learner's
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tests, if any amount was collected by AMVI using TR5
Receipt Book of another AMVI, the amounts so collected by
him would be handed over to the custodian of TR5 Receipt
Book, in favour of whom that book was issued. According to
PW1, Ext.P10(a) which is the relevant page of the copy of
Stock Register reveals that TR5 Receipt Book No.1077 was
issued to the accused on 31.03.2003. While Ext.P10(b)
relates to TR5 Receipt Book No.1093 issued to the accused
on 24.4.2003, Ext.P10(c) is in respect of TR5 Receipt Book
No.1107 issued to the accused on 23.5.2003.
15. PW2 had further stated that receipt Nos.39 to 49
of Ext.P12 are seen used by one Muraleekrishna, who was
working as MVI. According to her, receipt Nos.52 to 54 are
also seen used by Joyson. PW2 had further admitted that
receipt Nos.45, 46 and 48 to 51 of Ext. P22 are seen used
by another AMVI, namely Jerald. She had also stated that
there was no practice of entering in the TR Deposit
Register, when used TR5 Receipt Books are returned by
AMVI or MVI. It was suggested to PW2 that when she was
questioned and her statement was recorded under S.161
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Cr.P.C., she had stated that TR5 Deposit Register was being
maintained at her office. PW2 had denied that suggestion
and the "relevant" portion of 161 statement of PW2 was
marked as Ext.D1. It is pertinent to note that the fact that
Ext.D1 is only a portion of a sentence stated by PW2
denying that there was no practice of maintaining TR5
Deposit Register was not brought to the notice of the
Special Court by the learned defence counsel or the learned
Additional Legal Adviser.
16. PW3 deposed that, he was working as MVI in the
very same office and he had testified that the usual
practice adopted in that office was to remit the amount
collected in a particular day on the immediate next day.
17. In support of the evidence of PW1 and PW2, PW3
testified that Ext.P32 which is the CF Register contain the
duplicates of TR5 receipts issued at the time of vehicle
checking. Ext.P32(a) is the duplicate of TR5 receipt in
respect of vehicle No.KL-01-4 3896, as per which, as per
receipt No.53 of TR5 Receipt Book No.49 a sum of
Rs.2,100/- was collected. But Ext.P23(a), the original TR5
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Receipt discloses receipt of Rs.200/- only. Ext. P32(b)
relates to vehicle No.KL-01-C 1817 and as per the duplicate
receipt pasted, Rs.3,300/- was collected. But Ext. P23(b)
the corresponding original receipt shows receipt of Rs.300/-
only. Ext.P32(c) reveals collection of Rs.1,100/ in respect of
vehicle No.KL-5A 6158, while its corresponding original
receipt marked as Ext.P23(c) shows receipt of Rs.100/- only.
Ext.P23(d) which relates to vehicle No.KL-2A 2516 shows
receipt of Rs.2,900/-. But the amount shown in its
corresponding original receipt marked as Ext.P24(a) is
Rs.200/- Ext.P32(e) shows collection of Rs.500/- towards
vehicle No. KL-01-Y 3936. But Ext. P24(b), its corresponding
original receipt only shows collection of Rs.200/-. While
Ext.P32(f) shows collection of Rs.500/- towards vehicle
No.KL-01-W 9377, its corresponding original receipt marked
as Ext.P24(b) discloses collection of Rs.200/- only.
Ext.P32(g) which relates to vehicle No.KL-01-N 5162 reveals
collection of Rs.1,700/-. But, its corresponding original
receipt marked as Ext.P24(d) is for Rs.200/-. Ext.P33(a) in
respect of KL-01-F 2483 is for Rs.1,900/- and Ext.P24(e), its
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original receipt shows only collection of Rs.100/-. Ext.
P33(b) which is with respect to vehicle No.KL-01-A 3819
shows collection of Rs.1,200/-, but its corresponding
original receipt marked as Ext.P24(f) only shows collection
of Rs.200/-. Ext.P34(a) which is with respect to vehicle
No.KL-7D 1926 shows collection of Rs.3,100/-, but its
corresponding original receipt marked as Ext.P25(a) only
shows collection of Rs.100/-. PW3 had deposed that the
handwriting in Exts.P32(a) to P32(g), Exts.P33(a) and
P33(b) and Ext.P34 (a) as well as in Exts.P23(a) to P23(c),
Exts.P24(a) to P24(f) and Ext.P25(a) are of the accused.
During cross-examination of PW3, no challenge raised
disputing the hand writing of the accused in Ext.P32(a),
P33(b), P34(a), P23(a) to P23 (c), P24(a) to P24(f) and
P25(a) and as such this evidence is not impeachable.
18. PW4 deposed that, he was working as AMVI in
the very same office and he had deposed that he had
occasion to collect a sum of Rs.250/- by way of using the
TR5 receipt book issued to the accused. Ext.P26(a) is the
relevant entry. He had also stated that receipt Nos. 46, 48,
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49, 50 and 51 of Ext.P20 marked as Exts.P22(b) to P22(f)
have also been used by him. PW5 also deposed that, she
was working as L.D Clerk in the very same office during the
period 2001 to 2004. Ext.P6 is the Fee Acceptance Register
maintained in that office. According to her, the accused was
working as AMVI in her office. She had deposed that she
had occasion to receive the amounts produced by the
accused while she was in charge of the cash counter. She
had further deposed the amounts remitted by the accused
as per Exts.P6(a) to P6(g), Exts.P7(a) to P7 (g), Exts.P8(a) to
P8(m) and Exts.P9(a) to P9(h) have been received by her.
She had also specifically deposed about the amounts
received by her on each day. In cross-examination she had
stated that the amounts collected after 1.00 p.m used to be
entrusted with the Head Accountant.
19. Apart from PW4 and PW5, PW6 deposed that, she
was working as U.D Clerk and she had stated that while she
was working in the cash counter, she had occasion to
receive amounts entrusted by the accused as per
Exts.P6(a), P6(d), P6(e), P7(e), P8(b) and P8(e). According
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to her, all those amounts have been received from the
accused. The amount received on each day was also
specifically deposed by PW6.
20. Moreover, PW7, another U.D Clerk in the very
same office had testified that during his tenure, he had
occasion to work in the cash counter and the amount
received by him used to be entered in the Fee Acceptance
Register. According to him, thereafter, the amount so
collected will be entrusted with the Head Accountant.
Exts.P7(h), P7(g), P8(i), P8(k) and P9(d) relate to the
amounts received by him from the accused. In cross-
examination, PW7 had stated that TR5 Deposit Register
was not being maintained in that office. PW8 deposed that,
he was working as L.D. Clerk in the very same office.
According to him, he was in charge of Store and so, it was
his duty to issue TRS Receipt Books. According to him, he
used to obtain the signature of AMVI or MVI in the Stock
Register at the time of issuance of TR5 Receipt Book.
Ext.P10 is the Stock Register alleged to have been
maintained by him. As per Exts.P10(a) to P10(m) TR5
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Receipt Book Nos. 1077, 1093, 1107, 1181, 1151, 1205,
1218, 1192, 1198, 1241, 49, 19, 65, 78, 122 and 125 were
issued to the accused. He had also identified the initials of
the accused in Ext.P10.
21. PW9 was also working along with the accused at
Sub Regional Transport Office, Neyyattinkara as AMVI.
According to him, it was the usual practice for the AMVIs to
remit the amount collected by them to the Clerk on the
cash counter after entering the same in Fee Acceptance
Register. PW9 deposed that, in Ext.P14, which is one of TR5
Receipt Books issued to the accused, by way of using
receipt Nos.1 to 19 and 30, he had collected a sum of
Rs.4,040/-, which he had entrusted to the accused as it was
possible only for the accused to remit the amount collected
through the TR5 Receipt Book issued to him. In page 19 of
Ext.P14, according to PW9, the accused himself had
acknowledged receipt of Rs.4,040/-. In cross-examination, it
was suggested to PW9 that only after exhausting all
receipts in the TR Receipt Book issued to the AMVI, another
TR5 Receipt Book would be issued to him. PW9 had
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specifically denied that suggestion as according to him,
number of receipts intended to be used at the time of field
checking, learner's test etc. could not be planned earlier
and so there was no prohibition for receiving more than one
TR5 receipt book from the office. It is pertinent to note that
Ext.P14(a) series, which relate to the receipts issued by
PW9 and genuineness of the alleged endorsement by the
accused on page No.19 of Ext.P14 was not specifically
challenged in cross-examination.
22. PW10 deposed that, he was working as
Accountant in the very same office, and according to him as
per the order of the Transport Commissioner, he had
submitted an Enquiry Report with respect to the cash
transactions of the accused during the period 17.4.2002 to
25.6.2004. Ext.P35 is the copy of that report. It is the case
of PW10 that by way of using Exts.P11 to P25, the accused
had collected a total sum of Rs.4,93,400/-. Exts.P26 and
P27 related to collection of amounts in C.C.No.27/2009 and
according to PW10 during the relevant period, the accused
had collected a sum of Rs.56,310/-. PW10 had further
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deposed that as per Exts.P11 to P25, the accused had
collected Rs.40,200/-, 42,400/-, 16 ,800/-, 34,600/-,
31,680/-, 22,710/-, 18,400/- 20,230/-, 50,800/-, 10,000 /-,
57,500/-, 39,860/-, 31,720/ , 30,110/-, 950/- and 50,150/-
respectively. As per Exts.P26 and P27, the accused had
collected Rs.47,310/- and Rs.9,000/- respectively. The
remittances made by the accused have also been
specifically mentioned in Ext.P35. According to PW10, the
accused had remitted a total sum of Rs.2,81,210/- and he
had also collected CF Fee of Rs.17,400/- with respect to the
period covered by C.C.No.26/2009. PW10 had further
deposed that with respect to the period covered by
C.C.No.27/2009, the accused had only remitted Rs.47,410/-
out of Rs.56,310/- collected by him.
23. PW10 had further deposed that the amount
shown in Ext.P23(a) with respect to receipt No.53 is
Rs.200/-, but as per Ext.P32(a) which is its corresponding
duplicate receipt the amount shown is Rs.2,300/-. The
amount shown in Ext.P23(b) which is the original receipt, is
Rs.300/-, while the amount shown in Ext.P32(b), its
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Crl.A. Nos. 140 & 141 of 2013
duplicate receipt is Rs.3,300/-. In Ext.P23(c), the original
receipt, Rs.100/- has been shown and in Ext.P32(c), its
duplicate copy, the amount shown is Rs.1,100/-. While
Rs.200/- has been shown in Ext.P24(a), the amount shown
in Ext.P32(d), its duplicate receipt is Rs.2,000/-. In
Ext.P24(d), the original receipt, Rs.200/- has been shown
and in Ext.P32(g), its corresponding duplicate copy, the
amount shown is Rs.1,700/-. While, Rs.200/- has been
shown in Ext. P24(b), in Ext.P32(f), its duplicate copy, the
amount shown is Rs.500/-. In Ext.P25(a), the amount shown
is Rs.100/- whereas in Ext.P34(a), its duplicate copy the
amount shown is Rs.3,100/-. The amount shown in Ext.P24
is Rs.200/- and Rs.1,200/- has been shown in the photostat
duplicate copy affixed in Ext.P35 report, which has been
marked as Ext.P33(b). In Ext.P24(a), Rs.100/- has been
shown and as per the duplicate receipt pasted in Ext.P35
report, the amount shown is Rs.1,900/-. In Ext.P24(c) the
amount shown is Rs.100/-, whereas the amount shown in
its duplicate copy which has been passed in Ext.P35 is
Rs.500/-. According to PW10, the differences in between the
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original receipts and the duplicate copies have been
misappropriated by the accused. He had also stated that
even though he had given a statement before the Vigilance
Officials regarding total collection of Rs.7,52,595/- by the
accused, the actual amount collected by him only comes to
Rs.7,10,195/. PW10 deposed further that, the difference in
calculation was mainly due to the illegible receipts
examined by him. Even though, it was suggested to PW10
that non-adherence to the relevant Rules of the Kerala
Treasury Code and Circulars by PW2 was the only reason for
the discrepancy in the accounts, that suggestion was
specifically denied by PW10. However, PW10 had admitted
that PW2, who was working as Head Accountant was bound
to strictly follow Circular No.3/86, copy of which has been
marked as Ext.D2. The suggestion that it was without
properly examining Exts.P11 to P27 and P6 that he had
prepared Ext.P35 report was denied by PW10.
24. PW17, who was working as Assistant Director of
Forensic Science Laboratory, was examined the records
forwarded from JCM Court, Neyyattinkara and submitted a
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Crl.A. Nos. 140 & 141 of 2013
report which has been marked as Ext.P43. According to her,
after comparing Ext.P39 series along with questioned
documents and Ext.P22(g) and Ext.P27(a), she had reached
a conclusion that all the writings are probably written by
same person. She had further stated that she could not
reach any opinion with respect to the initials in page Nos.
15, 16, 20 and 21 of Ext.P10 Stock Register. Thus, the
evidence of PW17 and Ext.P43 is not fully in support of the
prosecution case. However, law is settled that expert
evidence is only an opinion evidence of corroborative
nature and in the absence of corroborative evidence,
substantive evidence could be safely relied on to prove a
fact in issue.
25. When opportunity was given to the accused to
adduce defence evidence, two witnesses, DW1 and DW2
were examined on his side. DW1, who had worked as AMVI
at Sub RT Office, Nevvattinkara, testified that the
responsibility of accounting, at his office, was with Head
Accountant. Even though he had admitted that the accused
had worked along with him in the very same office, he was
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not aware whether the accused was suffering from bipolar
disease.
26. DW2 examined was none other than the wife of
the accused. Through her, Ext.D6, which is the Internal
Audit Report was marked. According to her, she came to
aware that one Sreekantan Nair, who had conducted an
Internal Audit had worked in the very same office, where
her husband was working as AMVI. She had further stated
that her husband was undergoing treatment under
Dr.Subash, since the year 2000, for mental disease. Ext.D7
is the certificate issued by Dr.Subash, which was marked
subject to the objection raised by the learned Additional
Legal Adviser.
27. In these matters, the allegation of the
prosecution is that, the accused, while working as an
Assistant Motor Vehicle Inspector, Sub Regional Transport
Office, Neyyattinkara, during the period from 11.04.2003 to
18.03.2004, who was authorized to collect fees and fines in
respect of the vehicles, had collected Rs.4,93,400/- being
the fees and fines directly and through other officials in the
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office, using TR5 receipts, which have been entrusted to
him and possessed by him during the period from
04.04.2003 to 12.03.2004. It is alleged further is that, out
of Rs.4,93,400/- collected by the accused, he had remitted
only Rs.2,12,190/- in the office and he dishonestly and
fraudulently misappropriated the balance amount of
Rs.2,81,210/-. Similarly, during the period from 30.03.2004
to 24.06.2004, the accused, who was authorized to collect
fees and fines in respect of the vehicles, had collected
Rs.56,310/- during the period from 17.04.2004 to
25.06.2004 and he had remitted only Rs.47,410/- in the
office and he dishonestly and fraudulently misappropriated
the balance amount of Rs.8,900/-.
28. On thorough scrutiny of the evidence of PWs 1 to
9 and Exts.P30 and P31, it is discernible that, the accused
had been working as AMVI at Sub RT Office, Neyyattinkara,
during the period from 17.04.2002 to 24.06.2004 and the
allegation of misappropriation was from 11.04.2003 to
18.03.2004 and from 30.03.2004 to 24.06.2004. The
accused also did not dispute that he had not worked as
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AMVI at Sub RT Office, Neyyattinkara during the above
period.
29. In addition to the above evidence, Ext.P1 Audit
report also let in evidence to prove the prosecution case.
That is to say, the Audit Wing of the Accountant General
conducted audit at Sub RT Office, Neyyattinkara and the
Audit Officer attached to the office of Accountant General
prepared Ext.P1. The accused joined Sub RT Office,
Neyyattinkara as AMVI on 17.04.2002 and was relieved of
his duty from that office on 25.06.2004, as is evident from
Ext.P35. It is stated in Ext.P35 that the accused had
collected a total amount of Rs.2,81,210/- and he had also
collected CF fee of Rs.17,400/- with respect to the period
covered by C.C. No.26/2009. Similarly, with respect to the
period covered by C.C. No.27 of 2009, the accused remitted
only Rs.47,410/- out of Rs.56,310/- collected by him. On
the basis of Ext.P1, PW1 sent Ext.P3 letter to PW11, who
registered a case as Crime No.736/2004 for the offences
punishable under Sections 409, 408, 418, 464, 466 and 468
of IPC at Neyyattinkara Police Station. Ext.P4 is the FIR.
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After registering the case, PW11 investigated the case.
While so, as directed by the DGP, this case was
subsequently handed over by PW14 to VACB. Subsequently,
PW13 registered this case as VC.7/2005/Tvpm, on the
direction of the Director of VACB. Thereafter, PWs 14 and
15 conducted investigation into this case and after the
completion of the investigation PW16 submitted the final
report to this Court.
30. The Special Court, after considering the
evidence, found that, the prosecution could succeed in
proving that the accused who was entrusted with a sum of
Rs.4,93,400 had only remitted a sum of Rs.2,81,200/- and
thereby he had dishonestly misappropriated a sum of
Rs.2,96,910, which is inclusive of a sum of Rs.15,700/-
misappropriated by him by way of committing falsification
of TR5 receipts with respect to a sum of Rs.17,400/-. In
C.C.27/2009, the prosecution also could prove that the
accused who had collected Rs.56,310/- during the period
17.4.2004 to 25.4.2004 had dishonestly misappropriated a
sum of Rs.8,900/- which was entrusted with him or over
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which he was having dominion. Criminal breach of trust
with respect to money over which the accused was having
dominion has also be improved. Hence, both these points
are found against the accused and held that the
prosecution could establish beyond reasonable doubt that
the accused in both these cases has committed offences
punishable under Section 13(1)(c) read with 13(2) of the
P.C. Act, 1988 and Section 409 of IPC. The prosecution has
got a case in C.C.26/2009 that in order to misappropriate a
sum of Rs.15,700/- which was collected towards CF fee, the
accused had committed falsification of accounts.
Exts.P23(a) to P23(c), P24(a) to P24(f), P25(a), P32(a),
P32(b), P32(c), P32(d), P32(f) and P32(g), P33(b), P34(a)
are the documents relied on by the prosecution to support
the case falsification of accounts by the accused. PW10 had
adduced detailed evidence with respect to falsification of
accounts done by the accused. It was brought out through
PW10 that it is usual practice to fix the duplicate copy of
TR5 receipt with respect to collection of CF in CF Register
and the original will be available in the TR5 Receipt Book.
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Exts. P23(a), P23(b), P23(c), P24(a), P24(d), P24(b), P25(a),
P24(f), P24(e) and P24(c) which are the original TR5
Receipts are with respect to Rs.200/-, 300/-, 100/-, 200/-,
200/-, 200/-, 100/-, 200/-, 1,000/- and 100/- respectively. In
the duplicate receipts with respect to the original receipts
except Exts.P24(e) and P24(c) which have been marked as
Exts.P32(a), P32(b), P32(c), P32(d), P32(f), P32(g), P34(a)
and P33(b), the amounts shown are Rs.2,100/-, 3,300/-,
1,100/-, 2,000/-, 1,700/-, 500/-, 3,100/- and 1,200/-
respectively. PW10 had deposed that with respect to
Exts.P24(e) and P24(c) the duplicate receipts have been
pasted in his report which relate to Rs.1,900/- and Rs.500/-
respectively. So, the total amount collected by the accused
as per the duplicate receipts will come to Rs.17,400/- But
the amount collected as per the original receipts only
comes to Rs.1,700/-. So, it is clear that by way of
falsification of accounts the accused had managed to
misappropriate a sum of Rs.15,700/-. A perusal of the
original receipts also shows that for the sake of
convenience, the accused had erased one of the letter in
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Crl.A. Nos. 140 & 141 of 2013
order to show lesser amount. For example, in Ext.P23(a)
one '0' is seen erased. So, it is clear that falsification of
accounts was purposefully and dishonestly done by the
accused in order to facilitate his attempt to misappropriate
Government money. Hence, it is further clear that the
prosecution has succeeded in proving that the accused in
C.C.26/2009 has committed the offence punishable under
S.477-A of I.P.C. also.
31. On re-appreciation of evidence, entrustment of
Ext.P11 to P25 TR5 receipts to the accused, is established
by the prosecution. Similarly, collection of fees and fines
using the said TR5 receipts and misappropriation by way of
committing falsification of TR5 receipts by the accused
were also proved by the prosecution. It is true that, PWs 4
and 9 also collected fees and fines, coming to small
amounts, using the said TR5 receipts, they have
categorically given evidence that, after collecting the
amounts, they have handed over the same to the accused.
Thus, the allegation of the prosecution that, the accused,
while working as an Assistant Motor Vehicle Inspector, Sub
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Regional Transport Office, Neyyattinkara, during the period
from 11.04.2003 to 18.03.2004, who was authorized to
collect fees and fines in respect of the vehicles, had
collected Rs.4,93,400/- being the fees and fines directly and
through other officials in the office, using TR5 receipts,
which have been entrusted to him and possessed by him
during the period from 04.04.2003 to 12.03.2004 and out of
Rs.4,93,400/- collected by the accused, he had remitted
only Rs.2,12,190/- in the office and he dishonestly and
fraudulently misappropriated the balance amount of
Rs.2,81,210/- and similarly, during the period from
30.03.2004 to 24.06.2004, the accused, who was
authorized to collect fees and fines in respect of the
vehicles, had collected Rs.56,310/- during the period from
17.04.2004 to 25.06.2004 and he had remitted only
Rs.47,410/- in the office and he dishonestly and
fraudulently misappropriated the balance amount of
Rs.8,900/-, is proved beyond reasonable doubt. In this
regard, apart from the substantive evidence available,
Ext.P43, expert opinion proved through PW17 also proved
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Crl.A. Nos. 140 & 141 of 2013
that the handwriting and signatures of the accused agree
standard writings and signatures in significant writing
characteristics. Thus, the expert opinion fully corroborated
the substantive evidence as well.
32. Before conclusion, it is relevant to consider what
are the essentials to be proved to complete an offence
under Section 409 of IPC. In the decision reported in
[(2012) 8 SCC 547 : AIR 2012 SC 3242] Sadhupati
Nageswara Rao v. State of Andhra Pradesh , the Apex
Court held that, in order to sustain a conviction under
section 409 of the Indian Penal Code, 1860, two ingredients
are to be proved: namely: (i) the accused, a public servant
or a banker or agent was entrusted with the property 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 requirement to bring home the accusations under
section 405 IPC are the requirements to prove conjointly (i)
entrustment and (ii) whether the accused was actuated by
a dishonest intention or not, misappropriated it or
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converted it to his own use or to the detriment of the
persons who entrusted it.
33. That apart, it is also the essential requirement
that, it should be shown that the accused has acted in the
capacity of a public servant, banker, merchant, factor,
broker, attorney or agent, as held by the Apex Court in the
decision reported in [2015 CrLJ 4040 : (2015) 3 SCC
(Cri) 724 : (2015) 8 Scale 95], Robert John D'Souza v.
Stephen V Gomes.
34. It is equally the well settled law that, once it is
proved by the prosecution that there was entrustment of
property and there was no proper accounting of the
entrusted property, then the burden is on the accused to
prove that there was no misappropriation and to explain
what happened to the property so entrusted. When the
accused fails to discharge his burden or failed to explain or
account for the misappropriated property, the accused is
said to have committed the offences of criminal breach of
trust and misappropriation. The fraudulent intention of the
accused could be inferred from the attending
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circumstances from the evidence adduced and the same
could not always be proved by direct evidence. Thus, the
law on the point is that, prosecution has the duty to prove
entrustment of property to the accused and then it is the
duty of the accused to account for the same or to explain
the same. The same ingredients of criminal breach of trust
and misappropriation have to be proved by the prosecution
for convicting the accused for the offences punishable
under Sections 13(1)(c) of the P.C. Act, 1988 as well.
Decisions reported in Jaikrishnadas Manohardas Desai
and Another v. State of 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 CriLJ 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 (SC),
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
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Crl.A. Nos. 140 & 141 of 2013
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, Roshen
Lal Raina v. State of Jammu & Kashmir, 1983 KHC 584:
1983 (2) SCC 429: AIR 1983 SC 631: 1983 SCC (Cri) 533:
1983 CriLJ) 975 and Raghavan K v. State of Kerala,
2012 KHC 420 are in support of this view.
35. In the instant case, as already discussed, the
entrustment of TR5 receipts and amount alleged to be
collected by the accused are proved by the prosecution and
the accused has no explanation otherwise to justify that he
did not misappropriate the amounts, as alleged by the
prosecution.
36. Point Nos.6 and 7:- Thus, on reappreciation of
evidence, it could be gathered that, the prosecution
evidence categorically established commission of offences
punishable under Section 13(2) read with 13(1)(c) of the
P.C. Act and under Sections 409 and 477-A of IPC, by the
accused, beyond reasonable doubt as found by the Special
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Court. Therefore, the conviction imposed against the
accused by the Special Court does not require any
interference.
37. Coming to the sentence, considering the gravity
of offences, the same seems to be very reasonable
considering the gravity of the offences. Therefore, I am
inclined to confirm the sentence imposed by the Special
Court, as such. Therefore, the common verdict impugned
does not require any interference and in such view of the
matter, these appeals must fail.
38. In the result, these criminal appeals stand
dismissed. All interlocutory applications pending in these
appeals stand dismissed.
39. The order suspending sentence and granting bail
to the appellant shall stand vacated and the bail bond
executed by the appellant/accused stands cancelled. The
appellant/accused is directed to surrender before the
Special Court and to undergo the sentence, within two
weeks from today, failing which, the special court shall
execute the sentence, without fail.
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Registry is directed to forward a copy of this judgment
to the Special Court, forthwith, for information and further
steps.
Sd/-
A. BADHARUDEEN
SK
JUDGE
