K.L. Rajendran vs State of Kerala

S. Siri Jagan, J.—The petitioner is the accused in C.C.No. 280/1998 before the Judicial First Class Magistrate''s Court-III, Palakkad. He

was prosecuted for an offence punishable u/s 409 of the Indian Penal Code. The prosecution case against the petitioner as described in the

Magistrate Court''s judgment is as follows;

The prosecution case is that, the accused was the Manager-in-charge of Maveli Store of Akathethara of the Civil Supplies Corporation of

Kerala. He was entrusted with property for sale and he has dominion over the property in his capacity of the Manager (public servant) and in way

of his business as merchant, he committed criminal breach of trust in respect of that property, of Rs. 17,108.37 in between the period of 22nd

October 1997 and 27th November 1997.

The prosecution examined PWs 1 to 7 and marked Exts. P1 to P8 documents. The petitioner did not adduce any evidence. After considering

the evidence adduced by the prosecution, the petitioner was convicted and sentenced to undergo rigorous imprisonment for three years along with

a fine of Rs. 5000/- with a default sentence of simple imprisonment for six months. The petitioner filed Crl. Appeal No. 197/2001 before the

Sessions Court, Palakkad, who confirmed the conviction, but modified the sentence to rigorous imprisonment for two years and to pay a fine of

Rs. 5000/- with a default sentence of three months'' simple imprisonment. The petitioner filed this Criminal Revision Petition challenging the

judgments of the courts below.

During the pendency of this Criminal Revision Petition, the revision petitioner died and his wife and children have come on record as additional

petitioners 2 to 4 to prosecute the Criminal Revision Petition.

The contention of the petitioners is that there is no evidence regarding any ingredient of Section 409 of the Indian Penal Code. It is submitted

that the prosecution has failed to prove any difference in stock. It is submitted that the conviction was based on the evidence of PW 3, the

Manager (Inspection), who examined the accounts and submitted a report. The learned counsel for the petitioners points out that PW 3, the

Manager (Inspection), who verified the accounts, himself admitted that he did not verify the stock to determine any shortage. According to the

petitioners, the real culprit is PW 5, the Manager, and in order to shield him, the 1st petitioner has been made a scape-goat. The petitioners,

therefore, argue for acquittal.

The learned Public Prosecutor would point out that the prosecution has proved the guilt of the 1st petitioner beyond a reasonable doubt. It is

pointed out that at the time when the 1st petitioner took charge of the establishment, the stock was verified and, signifying taking of charge, PW 5

and the 1st petitioner had signed the stock verification report. Likewise, subsequently, when PW 4 took charge, a similar stock verification was

done, in which also, the 1st petitioner signed. These two stock verification reports have been scrutinized by PW 3, based on the accounts and he

assessed a loss of Rs. 15,004.90, which is the basis for the prosecution charge. By proving Exts. P2 and P3 charge reports and Ext. P5 inspection

report, the prosecution has conclusively proved the ingredients of Section 409 is the contention raised.

I have considered the rival contentions in detail. As is clear from the arguments of the learned counsel for the petitioners, the contention of the

petitioners is that the appreciation of evidence by the courts below is not correct. In exercise of my powers u/s 397 of the Cr.P.C., I cannot re-

appreciate the evidence. I can only consider whether the appreciation of evidence by the courts below is perverse or not. Here PW 5 was holding

the charge of Manager of the Maveli Store in question. He entered on earned leave from 22.10.97 to 27.11.97. He handed over charge to the 1st

petitioner. At the time of handing over charge, stock verification was done and Ext. P2 charge handing over report was signed by PW 5 as well as

the 1st petitioner. The items handed over to the 1st petitioner have been specifically enumerated therein. Later, PW 4 conducted a verification on

28.11.1997. That also was signed by both PW 4 as well as the 1st petitioner and contained the details of the stock available. Ext. P5 inspection

report was submitted by PW 3, based on the stock verification report as well as the accounts available. He reported that there is a shortage in

stock, which was valued at Rs. 15,004.90. During the relevant time, admittedly the 1st petitioner was in charge of the stock. When stock valued at

Rs. 15,004.09 entrusted to the 1st petitioner went missing during the period when the 1st petitioner was in charge, naturally the ingredients of

Section 409 have been proved by the prosecution. I am not satisfied that there is any perversity in appreciation of evidence by the courts below.

Therefore, there is no merit in this Criminal Revision Petition and accordingly, the same is dismissed.