[Cites 17, Cited by 0]
Kerala High Court
Zakeer Hussain vs State Of Kerala on 22 January, 2026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 22ND DAY OF JANUARY 2026 / 2ND MAGHA, 1947
CRL.A NO. 1613 OF 2013
AGAINST THE JUDGMENT DATED 25.10.2013 IN CC NO.7 OF 2009 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
ZAKEER HUSSAIN,
FORMERLY CASHIER, KERALA STATE ELECTRICITY BOARD,
SUB ENGINEER OFFICE, THOLIKKODU, VITHURA, RESIDING AT
ROADARIKATHU PUHTEN VEEDU, ERUTHALAMOOLA, THOLIKKODE
P.O., THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.SREEKUMAR
SRI.K.P.JAYACHANDRAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A,
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2025,
THE COURT ON 22.01.2026 DELIVERED THE FOLLOWING:
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Crl.Appeal No.1613/2013 2
`C.R'
A. BADHARUDEEN, J.
================================
Crl.A No.1613 of 2013-B
================================
Dated this the 22nd day of January, 2026
JUDGMENT
Judgment in C.C.No.7/09 dated 25.10.2013 on the files of
Enquiry Commissioner and Special Judge, Thiruvananthapuram, is under
challenge in this appeal at the instance of the sole accused in the said case.
2. Heard the learned counsel for the appellant/accused as
well as the learned Special Public Prosecutor. Perused the impugned
judgment as well as the decisions placed by both sides.
3. In this matter, the prosecution allegation is that the
accused committed the offences punishable under Section 13(1)(c) r/w
13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988' for short)
as well as Sections 409 and 420 of the Indian Penal Code (`IPC' for short).
The precise allegation is that the accused, while working as Cashier in
KSEB Sub Engineer's Office at Tholikkodu, during the period between
19.08.2002 and 09.07.2004, when entrusted with collection of electricity
charges from the consumers of the said electricity office, had collected
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Rs.1,37,277/- in between 23.01.2004 and 24.04.2004 by using provisional
invoice receipt book No.40673, misappropriated the said sum without
accounting the details of the amount collected as per the said receipt book
in daily collection register and without remitting the same in the account of
the KSEB.
4. The learned counsel for the appellant/accused vehemently
canvassed that no evidence was adduced by the prosecution to substantiate
that Ext.P9, the provisional invoice receipt book No.40673 was pertaining
to KSEB Office, Tholikkodu and the same was used by the accused to
collect electricity charges as alleged. It is also submitted that similarly as
per the evidence, the prosecution did not succeed in proving the offences
against the accused beyond reasonable doubts. In such view of the matter,
the prosecution evidence is insufficient to hold that the accused committed
the offences punishable under Section 13(1)(c) r/w 13(2) of the PC Act,
1988 as well as Section 409 and 420 of IPC. Therefore the learned
counsel for the appellant pressed for interference in the verdict impugned
to record acquittal of the appellant.
5. Zealously opposing the contentions raised by the learned
counsel for the appellant, it is submitted by the learned Special Public
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Prosecutor that in this matter, even though Ext.P9 invoice receipt book
doesn't contain anything to show the same as a book used at KSEB,
Tholikkodu, the evidence of PW11 and PW15 coupled with Ext.P27 and
Ext.P1(l)(a) notice would clearly show that Ext.P9 receipt book was
entrusted to the accused, who was the sole Cashier of KSEB, Tholikkodu
and he had used the same to collect electricity charges. That apart, the
evidence of PW11 and PW15 would show that Exts.P27 and P1(l)(a)
receipts were issued by the accused from Ext.P9 receipt book from KSEB,
Tholikkodu and therefore, the collection of Rs.1,37,277/- by the accused
while serving as Cashier at KSEB, Tholikkodu and misappropriation of the
said sum without remitting the same in the account of the KSEB are
established by the prosecution beyond reasonable doubt. Thus the verdict
impugned is only to be confirmed.
6. Addressing the rival contentions, the question arises for
consideration are:
(i) Whether the finding of the Special Court that the accused
committed offence punishable under Section 13(1)(c) r/w 13(2) of the P.C
Act, 1988 is justifiable?
(ii) Whether the finding of the Special Court that the
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accused committed offence punishable under Section 409 of the IPC is
justifiable?
(iii) Whether the verdict under challenge would require
interference?
(iv) The order to be passed?
Points (i) to (iv)
7. In this case the entire dispute is centered on collection of
electricity charges by the accused by using Ext.P9 provisional receipt book
No.40673 which was alleged to be used by the accused during the period
between 23.01.1994 and 24.04.2004. As far as the employment of the
accused as the Cashier of KSEB, Tholikkodu section is concerned, PW6,
Senior Superintendent produced Ext.P16 attendance register and Ext.P17
office order register to establish that the accused was transferred from
Tholikkodu Vigilance Headquarters w.e.f 09.07.2004 as per Ext.P17(a)
(page No.82 of Ext.P17). As per Ext.P6 attendance register, proved
through PW6, it is evident, that the accused was working as Cashier,
KSEB Office Tholikkodu till 08.07.2004, i.e, in between 19.08.2002 to
09.07.2004. Ext.P38 transfer and posting order issued by the Deputy
Chief Engineer, KSEB would show that he was posted as Cashier in
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Electrical Division, Nedumangadu and after that he was posted at the
KSEB Office, Vithura. Apart from the evidence of PW6, PW2; PW3
Senior Assistant, KSEB, Vithura Section also deposed that during relevant
period Zakeer Hussain (accused) worked as Cashier at Sub Engineer's
Office, KSEB, Tholikkodu. In fact, this aspect is not disputed. The
Special Court given emphasis to the above evidence as well as the answer
given to questions 14 and 30 by the accused during his examination under
Section 313 of the Code of Criminal Procedure to prove this fact .On
scrutiny of the evidence relied on by the learned Special Judge the said
finding is only to be justified.
8. Ext.P33 is the sanction issued by PW14, the Chief
Engineer and according to her, she had received the prosecution records
and examined the records carefully and issued Ext.P33 sanction order to
prosecute the accused on finding that the offence against him was made
out.
9. Regarding sanction, the learned counsel for the
accused/appellant raised serious contentions and according to him, in so
far sanction is concerned, it is the duty of the authority to see the entire
prosecution records and make an opinion by applying the mind of the
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authority while issuing sanction. In this regard he has placed a decision of
the Apex Court reported in [2013 KHC 4983], CBI v. Ashok Kumar
Aggarwal. Repelling this contention, the learned Special Public Prosecutor
would submit that in this case while cross examining PW14, no serious
challenge was raised as regards to Ext.P33 in any manner and challenge
against prosecution sanction has been raised for the first time before this
Court. It is pointed out by the learned Special Public Prosecutor further
that in the decision reported in [2025 KHC OnLine 1031], Nujum P.A v.
State of Kerala, this Court has considered this challenge and also in [2025
KHC OnLine 1086 : 2025 KER 77437 : 2025 KLT OnLine 3182],
Bennet.T.C v. State of Kerala. In Bennet.T.C v. State of Kerala's case
(supra) in paragraphs 30, 32, 35 regarding the challenge against
prosecution sanction, confirmation or revision were raised before the court
in appeal, as extracted here under:
"30. It is pertinent to note the principles laid down by the Apex Court
in Paul Varghese v. State of Kerala reported in [2007 (2) KHC 400 : JT 2007 (5)
SC 525 : 2007 (2) KLT 529] and State by Police Inspector v. T. Venkatesh Murthy
reported in [(2004) 7 SCC 763], is that the validity of sanction does not, by itself,
affect the validity of the proceedings. A defect, omission, or irregularity in the
sanction would warrant interference only if the court is satisfied that such defect
has resulted in a failure of justice.
32. Reference may also be made to the decision of the Apex Court in
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Nanjappa v. State of Karnataka reported in [(2015) 14 SCC 186]. In paragraph 22
of the said judgment, the Apex Court held as under: 22. The legal position
regarding the importance of sanction under Section 19 of the Prevention of
Corruption Act is thus much too clear to admit equivocation. The statute forbids
taking of cognizance by the court against a public servant except with the previous
sanction of an authority competent to grant such sanction in terms of clauses (a),
(b) and (c) to Section 19(1). The question regarding validity of such sanction can
be raised at any stage of the proceedings. The competence of the court trying the
accused so much depends upon the existence of a valid sanction. In case the
sanction is found to be invalid, the court can discharge the accused relegating the
parties to a stage where the competent authority may grant a fresh sanction for the
prosecution in accordance with law. If the trial court proceeds, despite the
invalidity attached to the sanction order, the same shall be deemed to be non est in
the eyes of law and shall not forbid a second trial for the same offences, upon
grant of a valid sanction for such prosecution.
35. Going by the decisions extracted hereinabove, majority of the
decisions would emphasize the point that, failure of justice if not occasioned, by
way of the absence of, or any error, omission or irregularity in sanction, the same
by itself is not a ground to interfere the finding, sentence or order passed by the
Special Judge. It is the fundamental principle of interpretation of statute that, when
provisions of a statute are interpreted, the interpretation should be by giving effect
to all the provisions, without making any of the provisions redundant or
inoperative. Thus, contra view if taken, the same is akin to making sub-section 3(a)
of Section 19 of the PC Act, 1988, redundant. "
10. In fact, the paragraphs extracted from Bennet.T.C v.
State of Kerala's case (supra) would categorically establish the legal
position that unless there is failure of justice, challenge against the
prosecution sanction i.e a finding entered into by a Special Court cannot be
interfered with by this Court on the ground that sanction was bad. In the
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instant case, in fact, no cross examination was conducted and on reading
Ext.P33 read with the evidence of PW14, it could be seen that sanction
authority fully applied her mind on the prosecution records and granted
sanction to prosecute the accused, as such a course of action was found
necessary. Therefore, the challenge against prosecution sanction is found
to be unsustainable and is repelled. Otherwise also the learned counsel for
the accused miserably failed to show failure of justice in any manner to
interfere with the sanction order.
11. Coming to the crucial evidence, as already pointed out,
collection of electricity charges by using Ext.P9 provisional invoice receipt
by the accused from 23.01.2004 and 24.04.204 is the crux of the
allegation, where from the prosecution would contend that though the
amounts covered by Ext.P9 receipt book to the tune of Rs.1,37,277/- were
collected, and thereby the accused got entrustment of the same, he did not
remit the same in daily collection register SOP-10 and thereby the accused
misappropriated the same. This prime challenge at the instance of the
learned counsel for the accused that in Ext.P9 no seal or marks to be found
to show that the same was pertaining to KSEB, Tholikkodu and some
observations in this regard found by the Special Court could not be found
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in Ext.P9.
12. It is relevant to note that the prosecution case is that
Ext.P9 is the provisional receipt used at KSEB, Tholikkodu while the
accused was working as Cashier. In this connection, the evidence of
PW11 and PW15 and Ext.P1(l)(a) and Ext.P27 is very relevant. PW11
examined in this case was the Grama Panchayat Secretary, Tholikkodu.
According to him, Vinoba Nikethan Primary Health Centre has been
functioning under the Panchayat and electricity consumer number of the
said institution was 3968. Panchayat had been paying electricity charges
of the institution functioning under the Panchayat in Tholikkodu KSEB
Office. Ext.P27 original receipt dated 19.02.2004 bearing Sl.No.55
showing remittance of Rs.1,834/- as electricity charges was tendered in
evidence through him. PW11's evidence is that Ext.P27 receipt was
produced by him before the Vigilance on 11.08.2008 and the Vigilance
seized the same by preparing Ext.P28 inventory and he also signed in the
inventory. Ext.P27 would show that Ext.P9 receipt No.55 and its carbon
copy entry could be found in Ext.P9 receipt book. But Rs.1,834/- was
collected as per Ext.P27 receipt. But the amount covered as per Ext.P27
receipt did not find a place in Exts.P6 and P7 SOP book maintained in
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Tholikkodu KSEB office.
13. When evidence of PW11 in the above line has been
pointed out to the learned counsel for the accused/appellant, his contention
is that the said evidence is quite insufficient to prove that Ext.P9 receipt
book was once used by the accused as Cashier during the relevant period.
In this regard his contention is that even though PW3 has given evidence
identifying the handwritings and signatures of the accused in Exts.P6 and
P7 SOP book when Ext.P9 was produced for identifying the handwritings
therein, mainly only the figures, even though he admitted the same as that
of Zakeer Hussain (accused) in Exts.P6 and P7, PW3 took time for stating
the handwritings in Ext.P9 as that of the accused. In this connection, when
the evidence of PW3, who worked as a Senior Assistant, Vinoba Nikethan
section from 01.01.2004 to 31.03.2004 is scrutinized, his evidence is that
he was having charge of Senior Assistant in Tholikkodu Sub Section of
KSEB and while working as Senior Assistant in Vithura office also he held
the additional charge of Tholikkodu sub section and accused was the
Cashier of Tholikkodu Sub Section during the relevant period. According
to him, the handwritings in Exts.P6 and P7 SOP as well as in Ext.P9 are
that of the accused. While contending that Ext.P9 was not used by the
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accused for collecting any amount, it is submitted by the learned counsel
for the accused that even though the prosecution sent Ext.P9 for expert
opinion, the original receipt Ext.P27 or Ext.P1(l)(a) were not produced. It
is also submitted that PW13, the expert, also not definitely opined that
handwriting mainly figures are in the handwriting of the accused. As far
as the handwriting of the accused in Exts.P6, P7 and P9, identified by PW3
who is familiar with handwriting of the accused, the same is relevant and
is reliable and acceptable.
14. In the judgment of the Special Court, expert opinion has
been discussed in paragraphs 21 and 22 which are extracted as under:
"21. Then the next question to be determined is who
collected the amount on the basis of Ext.P9. I have already discussed
that PW3 Senior Assistant Sugathan and PW5 Dominic who conducted
the audit in the office categorically deposed before this court that the
handwriting seen in Ext.P9 is the handwriting of accused Zakeer
Hussain. At this juncture, it is very pertinent to go through the evidence
of PW13 handwriting expert and Exts.P32 and P32(a) reports prepared
by the handwriting expert PW13 is the Assistant Director (Documents)
of Forensic Science Laboratory, Thiruvananthapuram. PW13 deposed
before this court that she prepared Ext.P32 report dated 25.6.2009 after
examining the questioned and standard writings received for
examination. PW13 further would depose that 'reasons for report' is
appended along with Ext.P32 and the same is separately marked as
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Ext.P32(a). According to PW13 questioned markings, ie. Q1 to Q35 are
contained in Ext.P9 (disputed receipt book). Standard markings A1 to
A25 are contained in Ext.P15 receipt book and standard markings A26
to A50 are contained in Ext.P14 receipt book and standard markings S1
to S25 are contained in Ext.P19 receipt book. According to her on the
basis of Ext. P31 requisition standard writings of one Zakeer Hussain
was compared with the questioned documents. PW13 would depose that
she had carefully and thoroughly examined and compared the
questioned documents with standard documents in all aspects of
handwriting identification and detection of forgery with scientific aids
in the said Laboratory. The result of the examination is as follows: The
person who wrote the blue enclosed standard writings and signatures
stamped and marked A1 to A50 and S1 to S25 probably also wrote the
red enclosed questioned writings similarly stamped and marked Q1 to
Q35". PW13 further would state that in Ext.P32(a) the reasons for
arriving the conclusion on comparing similarities in figures are
detailed. In Ext.P32(a) reasons for report are detaildly noted. In
Ext.P32(a), it is noted that on comparison the questioned writings agree
with the standards in individual characteristics such as the following:
"I. The nature of execution of the figures '4' and '5'
II. The nature of execution of the figures '3' and '6'
III. The nature of execution of the figures '7' and '8'
IV. The nature of execution of the figures '9' and '2'
V. The nature of execution of the combination of figures '85' and '75'
VI. The nature of execution of the combination of figures '70' and '80'
VII. The nature of execution of the combination of figures '54' and '84
VIII. The nature of execution of the combination of figures '50' and
'20'
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IX. The nature of execution of the combination of figures '28' and '58'
X. The nature of execution of the combination of figures '89' and '79'
XI. The nature of execution of the combination of figures '29' and '19'
XII. The nature of execution of the letter 'D'
It is also noted in Ext.P32(a) that:
"The similarities found between the questioned and standard
writings are significant. There do not exist any material divergences
between them. The similarities are not due to any accidental
coincidence or attempted imitation but are only attributable to a
common authorship. However, since the questioned items are carbon
impression of writings, some of which are faint, and consist mostly of
figures, a definite conclusion on the authorship of the questioned items
could not be expressed. In the circumstances, it can be concluded that
the writer of the standard writings and signatures marked A1 to A50
and S1 to S25 probably also wrote the questioned writings marked Q1
to Q35."
In Ext.P32 report in paragraph No.2 the result of the
examination is noted as follows:
"The person who wrote the blue enclosed standard writings and
signatures stamped and marked A1 to A50 and S1 to S25 probably
also wrote the red enclosed questioned writings similarly stamped and
marked Q1 to Q35."
That means from the evidence of PW13 Assistant Director
(Documents), FSL, Thiruvananthapuram and from Ext.P32 report and
Ext.P32(a) it can safely be inferred the writer of the standard writings
and signatures marked A1 to A50 and S1 to S25 wrote questioned
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writings marked Q1 to Q35. I have already discussed that questioned
markings Q1 to Q35 are contained in Ext.P9 and markings S1 to S25
contained in Ext.P19 receipt book and markings A26 to A50 contained
in Ext.P14 receipt book and A1 to A25 markings contained in Ext.P15
receipt book. Ext.P14 receipt book was maintained in the office of the
Sub Engineer's Office for the period 2.4.2004 to 7.4.2004 and Ext.P15
receipt book is for the period 21.4.2004 to 23.4.2004. Admittedly, the
entries seen in Exts.P14 and P15 are in the handwriting of the accused
who was working as the cashier at that time. The entries seen in
Ext.P19 (markings S1 to S25) is also in the handwriting of the
accused. The similarities of the handwriting seen in Ext.P9 (Q1 to
Q35) disputed receipt book with the handwriting seen in Exts. P14,
P15 and P19 (markings A1 to A50 and S1 to S25 mentioned in
Exts.P32 and P32(a) report) are specifically reported by PW13 expert
in Ext.P32(a).
22. At the time of argument, the learned counsel appearing
for the accused submitted before me that from the evidence of PW13
Expert and from Ext.P32 report it is not definite that the handwriting
seen in Ext.P9 receipt book is the handwriting of person who made
entries in Exts.P14, P15 and P19. It is true that PW13 expert during
cross-examination deposed that with regard to the authorship of the
questioned writings she is unable to express a definite conclusion since
most of the writings are figures and carbon impressions. But the same
time, according to her similarities with standard writings and
questioned writings are significant but as the questioned writings are
carbon impressions of writings and consists mostly of figures a definite
conclusion could not be expressed. In Ext.P32 report the expert opined
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that the person who wrote the blue enclosed standard writings and
signatures stamped and marked A1 to A50 and S1 to S25 (Markings
noted in Exts.P14, P15 and P19) probably also wrote the red enclosed
questioned writings similarly stamped and marked Q1 to Q35
( Markings seen in Ext.P9 receipt book). Now the argument advanced
by the learned defence counsel is that since the word 'probably' is used
in Ext.P32, Ext. P32 report cannot be considered as conclusive
evidence to show that the entries in Ext.P9 receipt book is in the
handwriting of the accused. But the same time, in Ext.P32(a) the
similarities of use handwriting seen in Ext.P9 and Exts.P14, P15, P19
are specifically described. It is also very pertinent to note that PW3
Sugathan and PW5 Dominic categorically deposed before this court
that the handwritings seen in Ext.P9 is the handwriting of the accused
Zakeer Hussain. It is also very pertinent to note that from the evidence
of PW5 Dominic and from Ext.P1(i) Inspection Report, it is clear that
Ext.P9 was recovered from the debris of the Sub Engineer's Office,
Tholikkodu. The evidence available on record is sufficient to see that
accused Zakeer Hussain was the Cashier of the said office at the
relevant time. Except field staff (Lineman) no other office staff were
worked in the said office at the relevant period. I have already
discussed that from the evidence of PW11, PW15 coupled with Ext.P27
and Ext.P1(la) receipts, it is clear that Ext.P27 and Ext.P1(la) receipts
were issued from Ext.P9 receipt book from the Sub Engineer's Office,
Tholikkodu when the respective consumers paid electricity charges in
the said office. In such a situation, Exts.P32 and P32(a) report
prepared by the handwriting expert is an important piece of evidence
to infer that the handwriting seen in Ext.P9 is the handwriting of the
accused who was the only cashier working in the office at the relevant
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time."
15. After discussing the said evidence, in paragraph 23, the
learned Special Judge observed that in view of Sections 45 and 47 of the
Evidence Act, the evidence of PW13 and Exts.P32 and P32(a) also to be
relied on to support the evidence of PW3 and PW5. In fact, it is easy for
this court to reach a conclusion that Ext.P9 is the receipt book used by the
accused, while working as Cashier and from Ext.P9 receipt No.55 was
issued to the Panchayat as deposed by PW11. Further the evidence of PW3
identifying the handwriting of the accused in Exts.P6, P7 and P9 would
categorically establish the fact that the accused had written in Ext.P9 as well as
Exts.P6 and P7 while working as cashier at KSEB, Tholikkodu during the
relevant time. The expert evidence, indisputably a piece of corroborative
evidence, also supported the substantive evidence. The law is settled that
the corroborative evidence would have leg to stand only when substantive
evidence is let in to prove a matter in issue and here the substantive
evidence of PW11 alone is sufficient to hold that Ext.P9 was used by the
accused to collect electricity charges during the relevant time. Apart from
the evidence of PW11, PW15, who was conducting a service station in
Tholikkodu, Pulimoodu, also deposed that he paid electricity charge before
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Tholikkodu Sub section office during the relevant period for the electric
consumer No.7335 and he further deposed that Ext.P1(l)(a) is receipt
No.92 issued from Ext.P9. Thus the evidence of PW11 supported by
Ext.P27 and Ext.P1(l)(a) supported by PW15 would categorically show
that the accused used Ext.P9 receipt book to collect electricity charge due
to KSEB, Tholikkodu while he was working as Cashier therein during the
period of misappropriation.
16. In this connection, it is necessary to refer the ingredients
to attract offence under Section 409 of IPC. Section 409 of IPC is
extracted as hereunder:
"409. Criminal breach of trust by public servant, or by
banker, merchant or agent: Whoever, being in any manner entrusted
with property, or with any dominion over property in his capacity of a
public servant or in the way of his business as a banker, merchant,
factor, broker, attorney or agent, commits criminal breach of trust in
respect of that property, shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine."
17. Section 409 is pari materia to Section 316(5) of the
Bharatiya Nyaya Sanhita, 2023 (`BNS' for short) and Section 316(5) of
BNS reads as under:
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"316: Criminal breach of trust: 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.""
18. Analysing the ingredients to attract offence under
Section 409 of IPC, its applicability is as held by the Apex Court in
[(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v.
State of Andhra Pradesh, as pointed out by the learned counsel for the
petitioner.
19. In Sadhupati Nageswara Rao v. State of Andhra
Pradesh's case (supra), the Apex Court, while upholding the conviction
held that, where the appellant, an agent entrusted with the distribution of
the rice under the "Food for Work Scheme" to the workers on production
of coupons, was charged with misappropriation of 67.65 quintals of rice,
the evidence proves that there was entrustment of property to the accused.
20. In order to sustain a conviction under section 409 of the
IPC, two ingredients are to be proved; namely, (i) the accused, a public
servant or a banker or agent was entrusted with the property of which he is
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duty bound to account for; and (ii) the accused has committed criminal
breach of trust. What amounts to criminal breach of trust is provided
under Section 405 IPC. The basic requirements to bring home the
accusation under Section 405 IPC are to prove conjointly; (i) entrustment
and (ii) whether the accused was actuated by a dishonest intention or
not, misappropriated it or converted it to his own use or to the detriment of
the persons who entrusted it, as held by the Apex Court in the decision
reported in [(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati
Nageswara Ra v. State of Andhra Pradesh.
21. The gravamen of the offence under Section 409 of IPC is
the dishonest intention on the part of the accused. But to establish the
dishonest intention, it is not necessary that the prosecution should establish
an intention to retain permanently, the property misappropriated. An
intention, wrongfully to deprive the owner of the use of the property for a
time and to secure the use of that property for his own benefit for a time
would be sufficient. Section 409 of IPC cannot be construed as implying
that any head of an office, who is negligent in seeing that the rules about
remitting money to the treasury are observed, is ipso facto, guilty of
criminal breach of trust; but something more than that is required to bring
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home the dishonest intention.
22. Here the Special court found commission of offence/s
punishable under Section 13(1)(c) r/w 13(2) of the PC Act, 1988 as well as
Sections 409 of IPC by the accused and the prime allegation is that the
accused worked as Cashier in the KSEB Sub Engineer's Office at
Tholikkodu from 19.08.2002 to 09.07.2004 and during his tenure in
between 23.01.2004 and 24.04.2004, he had collected Rs.1,37,277/- by
using receipt No.40673, marked as Ext.P9 and misappropriated the said
amount. In fact, there was only one post of Cashier in the KSEB,
Tholikkodu and the job of a Cashier, as the name of the post itself
indicates, is nothing but to receive the electricity charges and other
amounts paid to KSEB by the consumers and to remit the same in the bank
account. The accused has no case that he did not work as Cashier during
the relevant period. On the contrary, the evidence of PW3, the Senior
Assistant, and PW5, T.Dominic, who conducted the audit at KSEB,
Tholikkodu, would clearly show that all the handwritings in Ext.P9 receipt
book are that of the accused. This was further fortified by the expert
opinion and, in order to mark the same as Exts.P32 and P32(a), PW13,
who authored the said documents, also was examined and PW13
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supported the same. That apart, the evidence of PW11 would show
remittance of electricity bill with the aid of Ext.P27 receipt issued from
Ext.P9 receipt book during the relevant time, which would substantiate the
fact that it was the accused, who had collected Rs.1,834/- from the Grama
Panchayat, Tholikkodu and issued Ext.P27 receipt from Ext.P9 book.
Further Ext.P1(l)(a) was issued to PW15 from Ext.P9 book while
accepting the amount due from PW15. Thus on evaluation of evidence, the
contention raised by the accused denying misappropriation, as alleged by
the prosecution, is found to be unsustainable. It is a settled law that when
a public servant, who was entrusted with the property of which he was
duty bound to account for, fails to account for the amount, he is said to
have committed a criminal offence punishable under Section 409 of the
IPC. Thus, on re-appreciation of evidence, this Court is of the view that the
Special Court rightly appreciated the evidence and entered into conviction
finding that the accused committed the offences punishable under Section
13(1)(c) r/w 13(2) of the PC Act, 1988 as well as Section 409 of IPC and
the said conviction is only to be justified.
23. Coming to the sentence, the Special Court imposed
rigorous imprisonment for a period of one year for the offence punishable
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under Section 13(1)(c) r/w 13(2) of the PC Act, 1988 and also rigorous
imprisonment for a period of one year for the offence punishable under
Section 409 of IPC. The minimum punishment provided for the offence
punishable under Section 13(1)(c) r/w 13(2) of the PC Act, 1988 is one
year and in such circumstance, no reduction in sentence also practically
possible. In view of the matter, the sentence is also to be confirmed.
24. In the result, this Appeal fails and is accordingly
dismissed. The conviction and sentence imposed by the Special Court are
confirmed. As a sequel thereof, the order suspending sentence and
granting bail to the accused stands cancelled and the bail bond also stands
cancelled.
25. The accused is directed to surrender before the Special
Court to undergo the sentence forthwith, failing which the Special Court
shall execute the sentence forthwith.
Registry is directed to forward a copy of this judgment to the
Special Court for compliance and further steps.
Sd/- A. BADHARUDEEN, JUDGE
rtr/
