[Cites 25, Cited by 0]

Kerala High Court

T.G.Venugopal vs State Of Kerala on 23 February, 2026

                                                         2026:KER:15969

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

     MONDAY, THE 23RD DAY OF FEBRUARY 2026 / 4TH PHALGUNA, 1947

                          CRL.A NO. 864 OF 2011

 AGAINST THE JUDGMENT DATED 07.05.2011 IN C.C. NO.36 OF 2008 ON THE

    FILES OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM


APPELLANT/ACCUSED NO.1:

           T.G.VENUGOPAL
           S/O.GOPALA PILLAI, THODUVAKKATHU HOUSE, PUTHUPALLY SOUTH,
           KAYAMKULAM
           (FORMERLY SHOP MANAGER, MAVELI STORE, EDATHUVA)


           BY ADVS.
           SRI.P.VIJAYA BHANU (SR.)
           SMT.P.MAYA


RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM.

           SRI.RAJESH A. - SPL PP VACB, SMT.REKHA S. - SR PP VACB


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2026,
THE COURT ON 23.02.2026 DELIVERED THE FOLLOWING:
                                                                   2026:KER:15969
Crl.A. No. 864 of 2011
                                        2



                                                                   "C.R"
                                JUDGMENT

Dated this the 23rd day of February, 2026

The 1st accused in C.C. No.36/2008 on the files of

the Court of the Enquiry Commissioner and Special Judge,

Kottayam, has filed this appeal, under Section 374(2) of the

Code of Criminal Procedure, 1973 [hereinafter referred as

'Cr.P.C.' for short], challenging the conviction and sentence

imposed by the Special Judge, against him as per the

judgment dated 07.05.2011. The State of Kerala,

represented by the Special Public Prosecutor is arrayed as

the respondent herein.

2. Heard the learned senior counsel for the appellant

and the learned Special Public Prosecutor, in detail. Carefully

gone through the verdict under challenge, the evidence

available and also the decisions placed by both sides.

3. Parties in this appeal shall be referred as

'accused' and 'prosecution', hereafter.

4. The prosecution alleges commission of offences

punishable under Sections 13(1)(d) read with 13(2) of the 2026:KER:15969

Prevention of Corruption Act, 1988 [hereinafter referred as

'P.C. Act, 1988 for short] and under Section 477A and 120B

of the Indian Penal Code [hereinafter referred as 'IPC' for

short], by the 1st and 2nd accused. The specific allegation of

the prosecution is that, accused Nos.1 and 2, while working

in the Kerala State Civil Supplies Corporation, Maveli Store,

Edathua, hatched conspiracy during the month of April,

1995, with dishonest intention to obtain undue pecuniary

advantage to themselves and to cause corresponding loss to

the State Exchequer (i.e. Civil Supplies Corporation Ltd.)

misappropriated commodities worth Rs.3,59,545.05 owned

by the Civil Supplies Corporation by falsifying the records of

the Maveli Store, Edathua in between the period from

01.04.1995 to 24.06.1995.

5. After framing charge for the offences punishable

under Sections 13(2) read with 13(1)(c) and 13(1)(d) of the

P.C. Act, 1988 and under Sections 120B and 477A of the IPC,

the Special Court recorded evidence and completed trial.

During trial, PWs 1 to 20 were examined and Exts.P1 to P48

were marked on the side of the prosecution. Ext.D1 was

marked through PW7 on the side of the accused.

2026:KER:15969

6. On appreciation of evidence, the Special Court

found that the 2nd accused was not guilty for the offences

punishable under Section 13(2) of the P.C. Act, 1988 and

under Section 477A of IPC and he was acquitted for the said

offences. However, the Special Court found that the 1 st

accused was guilty for the offences punishable under Section

13(2) read with 13(1)(c) and 13(1)(d) of the P.C. Act, 1988

and under Section 477A of IPC. Accordingly, the 1 st accused

was convicted for the said offences and sentenced as under:

"The 1st accused is convicted under section 13(2) r/w. section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and sentenced to undergo simple imprisonment for two years and a fine of Rs.4,00,000/- (Rupees four lakhs only), in default to undergo simple imprisonment for six months. The 1st accused is also convicted under section 477A IPC and sentenced to undergo simple imprisonment for one year. The sentences of imprisonment shall run concurrently."

7. While assailing the verdict impugned, the first

point raised by the learned senior counsel for the 1 st

accused/appellant is that, in this matter, the entire

prosecution case rests on Exts.P1 and P2 documents and

according to him, Ext.P1 is the copy of inspection report for 2026:KER:15969

the period between 01.04.1995 to 26.08.1995. Similarly,

Ext.P2 is the attested copy of trading particulars/inspection

report for the period from 01.04.1995 to 26.08.1995.

According to the learned senior counsel, the originals of

Exts.P1 and P2 were not tendered in evidence, instead only

copies of the same were tendered in evidence. It is pointed

out that, non-production of the originals of Exts.P1 and P2 as

primary evidence and production of Exts.P1 and P2, without

sufficient reasons to accept the same as secondary

evidence, make Exts.P1 and P2 inadmissible in evidence and

if so, the conviction and sentence imposed against the 1 st

accused, merely based on Exts.P1 and P2 would not sustain

in the eye of law and the same are liable to be set aside.

8. When the learned senior counsel for the 1 st

accused was asked to clarify whether Exts.P1 and P2

documents would qualify the status of secondary evidence,

the learned senior counsel though initially answered in the

negative, he fairly conceded that he would submit

regarding this legal question on the next day. Then, he has

placed two decisions in support of his contentions. The first

decision placed by the learned senior counsel is one 2026:KER:15969

reported in [MANU/SC/0066/2023 : AIR 2023 SC 615 :

2023(1) KHC 451] Saurav Das v. Union of India (UOI)

and Others, with reference to paragraph No.5. In the said

decision, the Apex Court considered a petition filed under

Article 32 of the Constitution of India praying appropriate

directions/orders directing the respondents therein/State to

enable free public access to chargesheets and Final Reports

filed as per Section 173 of Cr.P.C, referring the decision of

the Apex Court reported in [MANU/SC/1339/2016 :

(2016) 9 SCC 473] Youth Bar Association of India v.

Union of India. In Saurav Das's case (supra), the

contention raised by the petitioner was that, a chargesheet

would become a public document, once the same would be

filed in the Court in view of Sections 74 and 75 of the Indian

Evidence Act, 1872. The Apex Court considered the status

of chargesheet filed under Section 173(4) of Cr.P.C. and the

Apex Court held in paragraph No.5 as under:

"Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the 2026:KER:15969

chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act. As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents. Therefore, the chargesheet/ documents along with the chargesheet cannot be said to be public documents Under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced."

9. Apart from the above decision, the learned senior

counsel placed another decision of Jharkhand High Court in

Junul Surin and Others v. Silas Munda and Others

reported in [MANU/JH/0394/2008 : AIR 2008 Jhar 82] . In

the said case, the question considered by the High Court of

judicature in Jharkhand was whether report of delivery

possession by the Circle Inspector of executive Court is a

public document? While deciding the question, in paragraph

No.10, the Jharkhand High Court held as under:

"10. There is distinction between the record of the Court and the record of the act of the Court. It is only record of act of the Court which is a public document. A report even if prepared in discharging official duty with regard to possession cannot be a 2026:KER:15969

public document so as to report of possession is taken as conclusive. The report in relation to possession cannot be taken as statutory report. What is stated in the report however has to be proved if the same is not accepted by other side. For example if a summon for settlement of issue or disposal of suits is issued under the seal of the Court directing the defendants to appear on a particular date this part of the summon, no doubt is a public document but the report of the process server with regard to service of summon made on the back of the report or on a separate sheet cannot take place of a public document. If the party disputes the report and the service of summons then the report as to be proved. Similarly, if a writ of attachment or writ for affecting delivery of possession is issued by the judicial or quasi-judicial authority directing the officer or bailiff to effect delivery of possession then the report of the officer or bailiff certifying the execution of writ for delivery of possession cannot be taken as a public document and therefore, report of the officer effecting delivery of possession has to be proved."

10. That apart, the learned senior counsel for the 1 st

accused submitted that, in this case, the 1 st accused

deposited the entire amount alleged to be misappropriated

by him. Therefore, in the matter of sentence, fine may be

reduced, taking note of the deposit of the amount and also 2026:KER:15969

reduce the substantive sentence to the statutory minimum.

11. In reply to the first contention raised by the

learned senior counsel for the 1 st accused, it is pointed out

by the learned Special Public Prosecutor that, the attack

against Exts.P1 and P2 has no legs to stand in the instant

case, since the original documents wherefrom Exts.P1 and

P2 were generated as such have been produced and

witnesses to those documents were also examined to prove

the same. Therefore, the original documents itself were

proved to justify the misappropriation independently.

12. It is also submitted by the learned Special Public

Prosecutor with reference to paragraph No.81 of the Three

Bench decision of the Apex Court reported in [2023 KHC

6782 : 2023 (5) KHC SN 29 : AIR 2023 SC 4331]

Harendra Rai v. State of Bihar, wherein it was held by the

Apex Court that, the FIR is a public document defined under

Section 74 of the Indian Evidence Act.

13. Apart from the said decision, another decision of

this Court in Vijayamma v. G.Venugopal reported in

[2024 (2) KHC 553 : 2024 KER 19899 : 2024 (3) KLT SN

22] also has been placed by the learned Special Public 2026:KER:15969

Prosecutor, with reference to paragraph No.34. In the said

case, the question considered by this Court was whether

additional documents produced under Order 41 Rule 27 of

Code of Civil Procedure, 1908, in an appeal, which are

disputed by the other party could be accepted in evidence,

without proof of those documents? While addressing this

query, in paragraph No.34 this Court observed as under:

"34. Coming to the nature of documents marked as Exts.A6 to A10, the same are public documents dealt under Section 74 of the Indian Evidence Act, 1872. As per Section 74(1)(iii) of the Indian Evidence Act, documents forming part of the acts or records of the act of public offices, legislative, judicial and executive, [or any part of India or of the Commonwealth], or of a foreign country are public documents. Similarly, public records kept [in any state] of private documents are also public documents. Except the above documents, all are private documents as per Section 75 of the Indian Evidence Act. Sections 76 and 77 of the Indian Evidence Act, 1872 provides as under:

76. Certified copies of public documents. -

Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case 2026:KER:15969

may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation- any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

77.Proof of documents by production of certified copies- Such certified copes may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies."

14. In view of the rival submissions, the points arise for

consideration are:

1. Whether the Special Court is justified in finding that the 1st accused committed the offence punishable under Section 13(2) read with 13(1)(c) and 13(1)(d) of the P.C. Act, 1988?

2. Whether the Special Court is j ustified in finding that the 1st accused committed the offence punishable under Section 477A of the IPC?

3. Whether the verdict of the Special Court would require interference?

4. Order to be passed?

15. Point Nos.1 and 2:- In this case, Ext.P36 FIR was 2026:KER:15969

registered by PW15, Dy.S.P, VACB, Alappuzha and the

investigation had been progressed and continued by PW16,

the Inspector of Police, VACB. PW16 deposed that, he

continued the investigation from 02.02.1999 to 17.04.2000.

Thereafter, this case had been investigated by PWs 17, 18

and 20.

16. PW1 deposed that she had been working as Junior

Manager (Inspection) in the office of Kerala State Civil

Supplies Corporation, Alappuzha during 1996-1998, that as

per the instruction of the vigilance Superintendent of police

of the Kerala State Civil Supplies Corporation, she prepared a

report and trading particulars of the period from 01.4.1995

to 26.8.1995 and she identified Exhibit P1 as the copy of the

report and Exhibit P2 as the copy of the trading particulars

and she admitted her signatures therein. The marking of the

said documents was objected by the counsel for the accused

on the ground that they were copies and they were marked

subject to objection. PW1 deposed further that she had

worked as Assistant Manager in Regional office at Ernakulam

of the Kerala State Civil Supplies Corporation and on

21.6.2004 she produced documents before the Investigating 2026:KER:15969

Officer and she signed in Exhibit P34 mahazar prepared for

the same. She further said that she produced Exhibits P1, P2,

P21, P27 and P28 and she attested those documents by

comparing with the originals kept in the Regional office. So

the evidence of PW1 would show that the above documents

are the true copies of the originals kept in the regional office.

17. However, the learned Special Judge observed that,

still prosecution did not explain why the original of the

documents were not produced. So as pointed out by learned

counsel for the 1st accused Exhibits P1 and P2 were not

legally admissible. Section 65 of the Evidence Act mandates

that secondary evidence may be given in the circumstances

mentioned in that Section. Prosecution did not point out that

any of the circumstances mentioned in that section was

available in the present case. It was seen that there was a

practice of producing only copies of the relevant documents

by the investigating officers in the V.A.C.B. That practice

should be discontinued. Of course, certified copy of a public

document would be admissible in evidence. But when a

document is particularly related to the matter in issue in the

case, the said document itself should be produced by the 2026:KER:15969

prosecution before the court. Learned Additional Legal

Adviser submitted that in the present case non-production of

the original of Exhibits P1 and P2 not at all fatal to the

prosecution, since they were the reports and trading

particulars prepared by PW1 on the basis of the documents

produced before the court and since PW1 herself gave oral

evidence before the court regarding the procedure done by

her and the conclusion arrived at by her. However, the

learned Special Judge found merit in that argument.

18. PW1 further identified Exhibit P4 as the stock

consignment notes, Exhibits P11 and P12 as the G.T.O's and

Exhibit P13 series identified as the GRS's, Exhibit P14 series

identified as the monthly statements prepared by the 1 st

accused himself for the period from April, 1995 to 31-7-1995,

Exhibit P3 identified as the stock verification report prepared

by PW3 and Exhibit P15 as the report prepared by

Sasidharan and she prepared the report and trading

particulars on the basis of the said documents. Relying on

these evidence that, since the original documents relied on

by PW1 for preparing Exhibits P1 and P2 were produced 2026:KER:15969

before the court, the learned Special Judge accepted the

argument of the Additional Legal Adviser that non-production

of original of Exhibits P1 and P2 did not adversely affect the

prosecution case.

19. PW1 deposed in detail regarding the conclusions

in the report and trading particulars. She said that except

regarding boiled rice, she took into consideration the

opening balance of the other commodities from Exhibit P3-

physical verification report prepared by PW3. She explained

that the stock register was not properly prepared and so she

relied on Exhibit P3. In re-examination with permission, she

pointed out that on 29-5-1995, the closing balance of sugar

was 2487 kg, there was no receipt or sale on that day, but on

the next day i.e., on 01-6-1995, the opening balance was

written as 48 kg Similarly on 01-6-1995 the opening balance

of rice was 817kg, receipt was 7989 kg and total should be

16164 kg, but was written as 6164 kg. She also pointed out

that 8.5 kg of coriander received on 15-6-1995 was not

entered in the stock register. She further said that she wrote

in detail regarding these discrepancies in Exhibit P1. So the

method adopted by PW1 is to rely on Exhibit P3 to find out 2026:KER:15969

the opening balance, then she found out the total sales

during the period from April, 1995 to 31-7-1995 from the

monthly statements prepared by the 1st accused and then

the sales from 01.8.1995 to 26.8.1995 from the sales stock

prepared by Sasidharan on 26-8-1995. PW13 (Sasidharan)

deposed that he was Junior Manager (Inspection) at

Alappuzha Civil Supplies Corporation, that on 26.8.1995, he

verified the physical stock at Edathua Maveli Store and

Exhibit P15 identified as the report prepared by him.

According to him, he conducted the physical verification in

the presence of the helpers P.Sasi (A2) and Thankachi and

Sasi signed in Exhibit P15 and that P30 is the inspection

book kept in the maveli store. Since the stock register was

not kept properly, it could be said that the method adopted

by PW1 in finding out the irregularities, as incorrect.

20. PW3 deposed that he was Senior Assistant in the

financial wing in the Head Office at Ernakulam of Kerala

State Civil Supplies Corporation and that as per direction of

the Managing Director, he conducted stock verification at the

maveli store in Edathua on 31-3-1995 and he identified 2026:KER:15969

Exhibit P3 as the stock verification report prepared by him

which contains his signature. He testified that the then Shop

Manager Venugopal and helper Sasi who got identified as A1

and A2 in the dock, were present at the time of the stock

verification and 1st accused signed in Exhibit P3 in his

presence. He further said that it was with the help of the

accused persons that he weighed the commodities and that

Exhibit P17 identified as the stock declaration submitted by

1st accused which contains 1st accused's signature. Nothing

was asked challenging Exts.P3 and P17 in cross-examination

for the 1st accused. A suggestion was made that 2 nd accused

was not present at the time of preparation of Exhibit P3 and

so the 2nd accused's signature is absent in it. PW3 denied it

and explained that since the 1 st accused had the charge

duty of the shop, only 1st accused's signature was put.

21. PW5 deposed that he was the Manager in Edathua

Unit from 12-5-1995 to 14-1-1997, that on 23-8-1995 he got

telephonic message that rice was being sold at a lower price

of Rs.5/- at Edathua Maveli Store, the actual price of rice at

that time was Rs.7/-, that so he informed the matter to

Sasidharan (PW13) and that Sasidharan came on the next 2026:KER:15969

day, they went to Edathua Maveli Store and the shop

manager was not there. Again on 25-8-1995 both of them

went to the Maveli Store, the shop manager was not there

and again on 26-8-1995 they went to that Maveli store and in

the absence of the shop manager and with the help of the

helpers in that maveli store they verified the physical stock

of the articles and prepared by PW13. He further said that

physical stock of non-maveli items could not be taken fully

on that day, that accused Nos.1 and 2 were suspended and

he went on 30.8.1995 to implement the suspension order

and on that day he took stock of the damaged non-maveli

items, segregated the good items from that damaged items

and prepared separate lists and that Exhibits P27 and P28

identified as the copy of the said lists and Exhibit P29

identified as the mahazar prepared for the same in which the

2nd accused and the new person in-charge of the maveli

store signed. He further said that in Exhibit P27 cost of the

damaged items was shown as Rs.8927.75 and in Exhibit P28,

the total cost of the good items segregated was shown as

Rs. 17364.95.

22. PW7 deposed that she was helper in Edathua 2026:KER:15969

Maveli store from 07-8-1995 to 07-12-1995, she was present

when Sasidharan and Muraleedharan (PW13 and PW5)

conducted physical verification and she admitted her

signature in Ext.P15.

23. PW8 deposed that he was Senior Assistant Grade

II in Alappuzha Supplyco Supermarket from January, 1995 to

November, 1996, that as per the direction of the Assistant

Manager he had delivered articles to Edathua Maveli store as

per consignment notes Nos. 1, 2 and 3 in Exhibit P10 and

that they contain his signature, that the then shop manager

of Edathua Maveli store Venugopalan signed in the

consignment notes acknowledging the receipt of the articles.

PW9 deposed that he was Senior Assistant Grade-I in

Alappuzha Supplyco Supermarket from 1996 January, that he

delivered the articles to Edathua Maveli store as per

consignment note Nos.4, 5, 6 and 7 in Exhibit P10, that they

contain his signature and the then shop manager of the

maveli store signed in them acknowledging the receipt of the

articles.

24. PW10 deposed that he was Senior Assistant in

Edathua unit depot of Kerala State Civil Supplies Corporation 2026:KER:15969

Limited from 1992 to 1997, that he had delivered articles to

Edathua Maveli store as per consignment note Nos.1 and 3

to 41 in Exhibit P8 and his signature was therein Ext.P8. He

also testified that shop manager Venugopalan signed in

consignment note Nos.1 to 20 and 22 to 34 in Exhibit P8 and

helper Sasi signed in consignment note Nos.21 and 35 to 40

in Exhibit P8 acknowledging the receipt of the articles. PW12

deposed that he was Senior Assistant in unit depot of the

Kerala State Civil Supplies Corporation at Edathua, that he

delivered articles to Edathua Maveli store as per

consignment note No.2 in Exhibit P8 and that the then shop

manager Venugopalan signed in it for receipt of the articles.

25. Adverting the first legal issue raised by the

learned senior counsel for the 1 st accused, negatived by the

learned Special Public Prosecutor, reference to Sections 74 to

76 of the Indian Evidence Act is relevant. The same are

extracted as under:

"74. Public documents.--The following documents are public documents: --

(1) Documents forming the acts, or records of the acts --

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and 2026:KER:15969

(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;

(2) Public records kept [in any State] of private documents.

75. Private documents.--All other documents are private.

76. Certified copies of public documents.-- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."

26. As per Section 76 of the Indian Evidence Act,

every public officers having the custody of a public

document, which any person has the right to inspect, shall

give that person on demand a copy of it on payment of the

legal fees there for, together with a certificate written at the 2026:KER:15969

foot of such copy that it is a true copy of such document or

part thereof, as the case may be, and such certificate shall

be dated and subscribed by such officer with his name and

his official title, and shall be sealed, whenever such officer is

authorized by law to make use of a seal and such copies so

certified shall be called certified copies.

27. Section 62 of the Indian Evidence Act deals with

primary evidence and the same mandates that the original

document itself to be produced for the inspection of the

Court, to treat the same as primary evidence.

28. In the instant case, according to the learned

Special Public Prosecutor, Exts.P1 and P2 are documents that

would come under the category of secondary evidence, but

the learned senior counsel for the appellant contends

otherwise.

29. Section 65 of the Indian Evidence Act deals with

cases in which secondary evidence relating to documents

may be given. It has been provided as under:

"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition or contents of a document in the following cases: --

2026:KER:15969

(a) when the original is shown or appears to be in the possession or power --

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

2026:KER:15969

In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

30. Thus, as per Section 65(e) of the Evidence Act,

when the original is a public document within the meaning of

Section 74, copy of the same by itself is a secondary

evidence. Then the question is whether Exts.P1 and P2 are

public documents within the meaning of Section 74?

31. Section 74 provides that, all documents are public,

when the documents forming the acts or records of the acts

viz. (i) of the sovereign authority, (ii) of official bodies and

tribunals, and (iii) of public officers, legislative, judicial and

executive of any part of India or of the Commonwealth or of

a foreign country. Except the documents classified under

Section 74 of the Evidence Act, all other documents are

private documents within the meaning of Section 75. Section

76 deals with certified copies of public documents as already

observed.

2026:KER:15969

32. In this case, evidently Exts.P1 and P2 were

tendered in evidence through the evidence of PW1, who held

the post of Junior Manager in Kerala State Civil Supplies

Corporation Limited, during the period from 1996-1998 and

according to her, while holding the said post, she had

prepared Ext.P1 inspection report for the period from

01.04.1995 to 26.08.1995 as ordered by Sri.Ittan, Vigilance

S.P. of the Civil Supplies Corporation. PW1 identified Ext.P1

as the copy of the said report and Ext.P2 as the copy of

trading particulars (inspection report from the period from

01.04.1995 to 26.08.1995). She identified the signatures

therein and accordingly the same got marked. Marking of

Exts.P1 and P2 was objected and accordingly those

documents got marked subject to objection. It is relevant to

note that, during further examination of PW1, she stated that

Exts.P5 to P10 are the original files kept at the Maveli Store

and Exts.P11 and P12 are the GTOs inspected by her. She

also identified the GRS she had inspected as Exts.P13,

P13(a) and P13(b) and she had prepared the statements

based on the monthly statements prepared by the Manger

and the Manager was Sri.Venugopal, the 1 st accused. PW1 2026:KER:15969

also deposed that, she prepared the sales stock register for

the period from 01.08.1995 to 26.08.1995 based on Ext.P14.

33. Thus, it appears that, in the instant case, there is

no reason to exclude Exts.P1 and P2 from the purview of

public documents, since the same are documents forming

acts or the records of the acts done by a public officer like

PW1. Even accepting the contention raised by the learned

senior counsel for the 1st accused to treat non-production of

Exts.P1 and P2 in original, the status of Exts.P1 and P2, the

copies thereof is nothing but a document come within the

purview of Section 63 as secondary evidence. Most

importantly, as far as Exts.P1 and P2 are concerned, the

author thereof was examined by the prosecution and she has

supported the documents and according to her, she had

verified Exts.P5 to P11 series documents for preparing

Exts.P1 and P2. In such a case, there is no reason to justify

the contention raised by the learned senior counsel to

eschew the evidence in the form of Exts.P1 and P2 for any

reason and in the said circumstance, this contention found to

be meritless.

34. Reverting back, it is relevant to note that, the 2026:KER:15969

findings of the Special Court in view of the evidence of PW1,

regarding the calculations relating to opening balance,

balance to be found, cost of shortage etc. are summarized in

a tabular form. The same is extracted as under:

Commodities blance as on 1-4-1995 Boiled rice 2577.00 (kgs.) Palm Oil (Kgs) Sabari loose 32.00 tea (Kg) Sabari tea 25.00 (pkt) Sabari tea 117.00 (100gm pkt) Lobia (kg.) Greengram (Kg) U.D.(washed) 76.00 (Kg) U.D. (split) kg 412.00 Bengalgram bold (kg) Bengalgram 81.00 small-kg Toordhal (Kg) Peesdhal (Kg) Mustard (Kg) 87.00 Chilli (old) 120.00 (Kg) Corriander (Kg) Cumin seed 68.50 (Kg) Methy (Kg) 49.00 Turmeric (Kg) 30.50 Sugar (Kg) Surabhi coffee Nil (pkt) Jaggery (Kg) 40.00 Opening Receipts Sales Transfer Balance Physical Shortage Cost of to be stock on shortage found 26-8-1995 (Rs.) 38425.00 28166.00 60.00 12836.00 640.00 12196.00 87811.20 4655.00 1783.50 6299.00 -- 139.50 Nil 139.50 4603.50 450.00 293.35 -- 188.65 9.00 179.65 7904.60 80.00 57.00 -- 48.00 21.00 27.00 432.00 300.00 19.00 -- 398.00 144.00 254.00 1625.60 198.00 2459.00 1080.00 129.00 1445.50 63.00 1382.50 19355.00 304.00 973.50 359.50 -- 918.00 214.00 704.00 12672.00 1682.00 813.00 -- 945.00 87.00 858.00 27885.00 1870.00 499.00 -- 1783.00 22.00 1761.00 49308.00 426.00 1505.00 767.00 -- 1164.00 63.00 1101.00 15414.00 151.00 87.50 75.00 69.50 59.00 10.50 126.00 106.00 289.50 93.00 77.00 225.50 110.00 115.50 3003.00 248.00 338.00 1429.00 116.00 2084.00 54.00 2030.00 29435.00 46.00 96.90 -- 36.10 33.00 3.10 52.70 1402.00 1443.25 -- 78.75 4.00 74.75 1495.00 243.00 1645.50 822.50 -- 1070.00 -- 1070.00 21400.00 175.00 108.85 -- 134.65 2.00 132.65 7295.75 228.00 140.65 -- 136.35 Nil 136.35 2045.25 103.00 41.65 -- 91.85 35.00 56.85 852.75 291.00 6800.00 3645.00 -- 3446.00 24.50 3421.50 40373.70 130.00 60.00 60.00 10.00 -- 10.00 103.00 359.00 319.00 115.00 -- -- -- --

Empty 385.00. 809.00 Nil 7.00 1087.00 180.00 907.00 4535.00 gunnies (No) Big onion (kg) Nil 220.00 137.50 -- 82.50 -- 82.50 288.75 2026:KER:15969

Onion (Kg) Nil 181.00 59.50 -- 121.50 Nil 121.50 425.25 Greengram 52.00 144.00 102.00 -- 94.00 34.50 59.50 1011.50 (kg) Potato (kg) 37.00 155.00 93.50 -- 98.50 Nil 98.50 394.00 Chillies (new) Nil 1268.00 710.50 -- 557.50 Nil 557.50 24530.00

35. On perusal of the evidence discussed, it could be

gathered that, there were 202 items in non-maveli items,

that the opening balance, receipts, sales, transfer, closing

balance, physical stock, shortage and cost of the said items

are shown in pages 17 to 20 in Exhibit P2, that the total

cost of shortage is Rs.39,838.40, that the cost of excess

items found is Rs.958.70, cost of damaged items is

Rs.8927.75, the cost of good items in the damaged items is

Rs.17364.95, and the cost of actual shortage is Rs.12,587/-

and total amount of the items misappropriated is

Rs.3,59,545/-. In Exhibit P2, total cost of the maveli items in

shortage is Rs.3,46,958.05. The total cost of non-maveli

items is Rs.12,587/-. It is thus PW1 calculated the total cost

of items in shortage as Rs.3,59,545/-.

36. In this case, PW1 has given evidence that she had

acquaintance with the signature of 1 st and 2nd accused as

they signed before her when she went for inspection at 2026:KER:15969

maveli store. She also stated that while she had been

working as Junior Manager, the monthly statements prepared

by 1st accused used to come before her and so she had

acquainted with his signature. PW5 deposed that he knew

the signature of 1st and 2nd accused as they were getting

salary from the unit depot where he was working. PW1 and

PW5 identified that consignment notes 1 to 20 and 22 to 34

in Exhibit P5, consignment note Nos. 1 to 7 in Exhibit P6,

consignment note Nos.3 to 20 and 22 to 34 in Exhibit P7 and

consignment note Nos.8 to 20 and 22 to 34 in Exhibit P9

contain signature of the 1 st accused and consignment note

Nos.21 and 35 to 40 in Exhibit P5, consignment note Nos.21

and 35 to 40 in Exhibit P7 and consignment note Nos.21 and

35 to 38 in Exhibit P9 contain signature of the 2 nd accused.

The suggestion made in cross-examination to them was that

PW1 and PW5 did not know the signature of the 2 nd accused

and consignment notes do not contain the signature of the

2nd accused. In fact, nothing extracted to disbelieve the

evidence of PW1 and PW5 regarding this point.

37. Thus, on re-appreciation of evidence, the

prosecution succeeded in proving misappropriation of 2026:KER:15969

commodities worth Rs.3,59,545/- by the 1 st accused,

though the role of the 2nd accused was not made out.

Therefore, the Special Court is right in finding that the 1 st

accused committed the offences punishable under Section

13(2) read with 13(1)(c) and 13(1)(d) of the P.C. Act, 1988

and under Section 477A of the IPC. In consequence thereof,

the conviction entered into by the learned Special Judge is

liable to sustain.

38. Coming to the sentence, I am of the view that

some leniency in the matter of sentence can be considered,

in the interest of justice.

39. Point Nos.3 and 4:- In the result, this appeal stands

allowed in part. The conviction imposed by the learned

Special Judge is confirmed. In the interest of justice, the

sentence imposed against the 1st accused for the offences

punishable under Section 13(2) read with 13(1)(c) and 13(1)

(d) of the P.C. Act, 1988 and under Section 477A of IPC, is

modified as under:

i. The 1st accused is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.40,000/- and in default to 2026:KER:15969

undergo rigorous imprisonment for four months, for the offence under Section 13(2) read with 13(1)(c) and 13(1)(d) of the P.C. Act, 1988.