P.A. Abdul Azeez vs State of Kerala

P. Ubaid, J—These two appeals arose from the common judgment of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C. No. 24 of 2002 and C.C. No. 25 of 2002. The appellant is the same in these two appeals. He was a Peon in the Sub Registrar''s Office, Vazhoor during 1995-1996. On the allegation that, he committed dishonest misappropriation of an amount of Rs. 65,463/- from public funds, without making remittance in the Sub Treasury as entrusted and directed by the Sub Registrar, and that for making the Sub Registrar believe that he had made remittance, he created false remittance challans showing remittance of Rs. 65,463/-, the appellant faced prosecution on two final reports submitted by the Vigilance and Anti Corruption Bureau (VACB), Kottayam before the trial court. The VACB registered a crime against two persons including the petitioner herein, on the complaint of the then Sub Registrar who detected the dishonest misappropriation and forgery committed by the Peon. As regards the misappropriation made from 23.5.1995 to 31.12.1996, the VACB submitted final report as ''A'' charge on which the learned trial Judge took cognizance as C.C. 24 of 2002, and as regards the dishonest misappropriation committed during 18.6.1996 to 3.7.1996, the VACB submitted ''B'' charge, on which the trial court took cognizance as C.C. 25 of 2002. The oral and documentary evidence in the two cases being common, the learned trial Judge tried the two cases jointly, and common evidence was recorded. As against the other accused arraigned in the crime, the VACB submitted separate final report.

The accused appeared before the trial court in the two cases and pleaded not guilty to the charge framed against him under Sections 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act (for short "the P.C. Act") and under Sections 409, 465 and 471 of I.P.C.

The prosecution examined 11 witnesses and also proved Exts. P1 to P42 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that the alleged misappropriation might have been committed by the Sub Registrar himself. No evidence was adduced in defence by the accused. On an appreciation of the evidence adduced by the prosecution, the trial court found the accused guilty in both the cases. On conviction, in C.C. 24 of 2002, the accused was sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of Rs. 25,000/- each under Section 13(2) read with Section 13(1)(c) and Section 13(2) read with Section 13(1)(d) of the P.C. Act, and under Section 409 I.P.C., and to undergo rigorous imprisonment for one year under Section 465 I.P.C. No separate sentence was awarded under Section 471 I.P.C., though found guilty under the said section also. On conviction in C.C. No. 25 of 2002 also, the accused was sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of Rs. 25,000/- each under Section 13(2) read with Section 13(1)(c) and Section 13(2) read with Section 13(1)(d) of the P.C. Act and under Section 409 I.P.C., and to undergo rigorous imprisonment for another term of one year under Section 465 I.P.C. In that case also, no separate sentence was awarded under Section 471 I.P.C., though found guilty under the said section. The substantive sentences in the two cases were directed to run concurrently under Section 427 Cr.P.C. Thus the sentence imposed in the two cases is practically rigorous imprisonment for four years, and a fine of Rs. 75,000/-. Aggrieved by the judgment of conviction dated 23.8.2006 in the two cases, the accused has come up in appeal.

Crl. A No. 1675/2006 is the appeal brought against the judgment of conviction in C.C. No. 24 of 2002 and Crl. A No. 1677 of 2006 is the appeal brought against the judgment of conviction in C.C. 25 of 2002.

During investigation, the appellant was removed from service. Investigation was directed against one Mohanan Nair also as co-accused in view of the statements of the appellant that he in fact entrusted the amount with another Peon Mohanan Nair with the belief that Mohanan Nair would remit the amount in the Sub Treasury, but he was in fact cheated by Mohanan Nair without making remittance in the Sub Treasury.

When these two appeals came up for hearing, the learned counsel for the appellant submitted that the alleged misappropriation was in fact done by another Peon by name Mohanan Nair, and this appellant happened to be prosecuted on the basis of the complaint made by the Sub Registrar that the Peon Abdul Azeez was in fact entrusted with the money for remittance in the treasury. Whether Mohanan Nair cheated Abdul Azeez, or whether there was anything vicious between them, was not in fact the concern of the Sub Registrar, who made complaint, or of the VACAB who made investigation on the said complaint. So the factual aspects for consideration in this case will not cause enquiry as regards the role of Mohanan Nair in the alleged vicious transaction. Though such submission was made by the learned counsel that Mohanan Nair is the actual culprit, the defence projected by the accused during trial was that he was not in fact entrusted with the money, and that the alleged misappropriation might have been committed by the Sub Registrar. On the other hand, the learned Public Prosecutor submitted that the prosecution has clear and convincing evidence to prove that the appellant was in fact entrusted with the money, and that he misappropriated the entire amount without making remittance in the treasury, and for the said purpose, he forged some treasury challans.

The prosecution mainly relies on the evidence given by PW 1, PW 2, PW 4, PW 6 and PW 7. Of them, PW 1 and PW 6 are the Sub Registrars and PW 2 is the Head clerk in the Sub Registrar''s Office, examined to prove the factual aspects including entrustment and production of forged treasury challans. PW 4 and PW 7 are the Treasury Officers examined to prove that the challans produced by the accused before the Sub Registrar to show remittance in the treasury are in fact bogus or forged treasury challans. PW 8 is the Deputy Superintendent of Police, VACB, who registered the crime, and PW 9 and PW 11 are the Vigilance Officers who conducted investigation. PW 10 is the Vigilance Officer who conducted part of the investigation and submitted final report.

In C.C. No. 24 of 2002, the prosecution allegation is that during the period between 23.5.1995 to 31.12.1996, the accused misappropriated a total amount of Rs. 52,918/-. The Sub Registrar and the Head Clerk examined by the prosecution have given definite and consistent evidence that the accused was in fact entrusted with the said money on different occasions for remittance in the treasury, but he misappropriated the entire amount without making remittance in the treasury. PW 1 has given the details of the entrustment made on different occasions. His evidence is that the accused was entrusted with Rs. 1,726/- on 23.5.1995, Rs. 4,946/- on 21.8.1995, Rs. 26,560/- on 8.9.1995, and Rs. 19,686/- on 21.5.1996. PW 1, PW 2 and PW 6 have given convincing evidence regarding the office procedure and practice regarding collection of amount in the Sub Registrar''s office and remittance in the treasury. All are definite and consistent that the entire amount collected on a day would be remitted in the treasury on the next day itself, and usually the Peon would be entrusted with the amount with the necessary filled up challans, for remittance in the treasury, after obtaining his signature and endorsement in the remittance register. The defence could not bring out anything in the cross-examination of these material witnesses as regards the office procedure. It is common knowledge that in an office where there are ministerial staff, the head of office will not directly go to the treasury for making remittance of the amount collected in the office. The head of office will entrust some ministerial staff under authorisation, and the ministerial staff is always bound to make remittance promptly as instructed and directed by the head of office. PW 1, PW 2 and PW 6 have given convincing evidence regarding this office procedure in the Sub Registrar''s Office, and they are definite regarding the alleged entrustment. These witnesses proved the Exts. P2, P4, P6 and P8 challans as the forged challans produced by the accused, to show remittance made by him. Exts. P1(a), P3(a), P5(a) and P7(a) are the acknowledgment entries made by the accused in the remittance register regarding the entrustment on four occasions. These entries are properly proved by the Sub Registrar, and the fact of entrustment on four occasions as detailed above are also well proved by the Sub registrar and the Head Clerk. The total amount covered by the four challans is Rs. 52,918/-. The details of the entrustment of this much amount on different occasions are given by PW 1 and PW 2. The evidence of PW 6 is mainly regarding the entrustment alleged in C.C. No. 25 of 2002. PW 1 and PW 2 are consistent that Exts. P2, P4, P6 and P8 challans were produced by the accused before the Sub Registrar, to show remittance of money in the Sub Treasury.

PW 4 and PW 7, the Treasury Officers have given convincing and definite evidence that these four challans are in fact forged treasury challans. Their evidence is that a genuine chalan issued from the treasury will bear the "cash received" seal, and also the round seal of the Sub Treasury. They have also stated in evidence that on verification of the register in the treasury, they could find that the amount covered by Exts. P2, P4, P6 and P8 challans is not seen remitted in the treasury. The two Treasury Officers affirmed in evidence that Exts. P2, P4, P6 and P8 challans do not bear the original office seal of the treasury or the "cash received" seal affixed from the treasury, and that these four challans are really forged challans. Thus, it stands well proved by the prosecution that Exts. P2, P4, P6 and P8 challans were created or forged by the accused for showing remittance in the treasury, and that the amount covered by these four challans totalling Rs. 52,918/- was not in fact remitted in the treasury by the accused. Thus, I find that entrustment stands well proved by the evidence of PW 1 and PW 2, and forgery of challans to show entrustment stands well proved by the evidence of PW 4 and PW 7. It stands well proved that the amount of Rs. 52,918/- covered by four challans was not remitted in the treasury by the accused. Thus, it is definite that the said amount was dishonestly misappropriated by the accused. Accordingly, I find that in C.C. No. 24 of 2002, the accused was rightly found guilty by the learned Trial Judge under the provisions of the P.C. Act and also under Sections 409 and 465 I.P.C. Entrustment is the essential ingredient of the offence punishable under Section 409 I.P.C., and dishonest misappropriation is the essential ingredient of the offence under Section 13(2) read with Section 13(1)(c) of the P.C. Act. The fact that the accused was illegally benefited by misappropriating the amount from public funds, will make him liable under Section 13(2) read with Section 13(1)(d) of the P.C. Act also. I find no reason or ground for interference in the judgment of conviction in C.C. No. 24 of 2002. Thus, I find that the prosecution case in C.C. No. 24 of 2002 stands well proved by convincing and satisfactory evidence.

In C.C. No. 25/2002 the period of misappropriation is between 18.6.1996 to 31.7.1996, and the amount involved is Rs. 12,545/-. The prosecution case is that on 18.6.1996 the accused was entrusted with Rs. 6,250/- and on 3.7.1996 he was entrusted with Rs. 6,295/-. Exts. P10 and P12 are the challans produced by the accused before the Sub Registrar, showing remittance of amount in the treasury. The Sub Registrar has proved Exts. P9(a) and P11(a) entries of acknowledgment of receipt of money made by the accused when he received the said amount for remittance in the treasury. PW 6 and PW 2 are definite regarding the entrustment of Rs. 6,250/- on 18.6.1996 and Rs. 6,295/- on 3.7.1996. The Exts. P9(a) and P11(a) entries well corroborate their evidence. Nothing more is required to prove the entrustment alleged by the prosecution. The evidence of PW 4 and PW 7, the treasury officers regarding challans is that these are forged or bogus challans. They are definite that these challans do not bear the genuine office seal of the treasury or the genuine "cash received" seal of the treasury. They have also stated in evidence that on verification of the registers, remittance of Rs. 6,250/- covered by Ext. P10, or remittance of Rs. 6,295/- covered by Ext. P12 could not be found. Thus these two witnesses are definite that the amount of Rs. 12,545/- covered by Ext. P10 and P12 challans was not in fact remitted by anybody, and they are also definite that the challans are not the challans issued from the treasury. PW 6 was the Head of Office at the relevant time, as successor of PW 1. But PW 2 continued there as Head Clerk during the tenure of PW 6 also. She is definite regarding the office procedure, and she is definite regarding entrustment of the amount on 18.6.1996 and on 3.7.1996. There is absolutely no reason why PW 2 and PW 6 should be disbelieved. The evidence given by PW 6 regarding the office procedure and entrustment is fully consistent with that of PW 1 and PW 2. PW 4 and PW 7 have given evidence on the basis of the entries in the treasurer''s cash book and also in the subsidiary register. Once entrustment is well proved and remittance in the treasury is not proved, the only finding possible is that the amount was misappropriated by the person, who was entrusted with the amount.

Exts. P24 and P26 are two genuine challans produced by the prosecution to convince the court that genuine challans must be like these two challans, and that the challans produced by the accused before the Sub Registrar are in fact bogus and forged challans. These two genuine challans bear the "cash received" seal, and also the round seal of the Sub Treasury. These are the original or genuine seals, and the treasury officers are definite that the challans produced by the accused are really forged and bogus challans. Thus in C.C. No. 25/2002 also I find that the prosecution has well proved the case against the accused. Entrustment, which is the essential ingredient of the offence under Section 409 IPC, and dishonest misappropriation, which is the essential ingredient under Section 13(2) r/w 13(1)(c) of the P.C. Act, stand well proved by the evidence of the material witnesses. If any public servant derives any benefit illegally, from public funds, or by misappropriation or otherwise, he is liable for punishment under Section 13(1)(d) also.

As discussed and found above, the whole prosecution case against the appellant in C.C. No. 24/2002 and C.C. No. 25/2002 stands well proved by convincing and satisfactory evidence. As against the other accused Mohanan Nair, the prosecution has submitted separate final report, but decision in the said case will have no bearing on the decision in this case. The accused does not have any consistent defence. Whatever be the defence, there is no material to probabilise such defence. One defence is that the Sub Registrar might have made the alleged misappropriation. But nothing could be brought out to substantiate such allegation, from the evidence of the material witnesses including the Sub Registrar. Another defence is that misappropriation was in fact made by the other peon Mohanan Nair. But when entrustment with the appellant herein is well proved, and failure on his part is also proved, the court need not hesitate to convict the appellant on the ground that another prosecution is pending against Mohanan Nair. The vicious transaction between the appellant and Mohanan Nair cannot be the subject matter of enquiry in these two cases.

As regards sentence, I find that some interference in appeal is necessary. The appellant will have to undergo rigorous imprisonment for a total period of four years and will have to pay the fine of Rs. 75,000/-. All the substantive sentences in one case are directed to run concurrently, and the sentences in the two cases are also directed to run concurrently under Section 427 of the Code of Criminal Procedure. Considering the facts and circumstances, including the fact that the prosecution has been pending for about 14 years, I feel that the jail sentence can be modified and reduced reasonably. The alleged misappropriation was made in 1995-96. The appellant has already lost his job. Thus, he has already received the inevitable punishment. I feel that the minimum sentence will meet the ends of justice in this case.

In the result, these two appeals are allowed in part. The conviction made by the court below against the appellant in C.C. Nos. 24/2002 and 25/2002 will stand confirmed in appeal. However, the sentence in the two cases under Section 13(2) r/w 13(1)(c) and under Section 13(2) r/w 13(1)(d) of the P.C. Act, and also under Section 409 IPC, will stand modified and reduced to rigorous imprisonment for one year each. The fine sentence imposed by the trial court is maintained. The benefit of concurrent sentence given by the trial court in each case, and also under Section 427 of the Cr.P.C. is also maintained.