R. Kittan vs The State of Tamil Nadu

Batch of appeals arising from the judgements of the trial court in Special C.C Nos.4 to 12 of 2001 on the file of District and Sessions/Special,,,

Court, Udhagamandalam, Nilgiris District traces its root to a common complaint.",,,

The accused persons Thiru.S.K.Thathan (A-1 died pending appeal) and Thiru. R.Kittan (A-2) were employed in Education Department as,,,

Assistant Elementary Education Officer (AEEO) and Junior Assistant respectively at Kothagiri Additional Elementary Education Office. The,,,

charges against them are criminal breach of trust, misappropriation, forgery, falsification of accounts, creation of false documents and abuse of",,,

official position for illegal pecuniary advantage.,,,

The criminal law was set into motion based on the complaint lodged by hiru.R.Narayanasamy, Director of Elementary Education on 17.09.1997",,,

detailing out several instances financial irregularities like falsification of accounts, forgery and misappropriation. Though in the complaint only",,,

Mathappan [A1] (AEEO) and Thathan (AEEO) were named as suspects of crime, in the course of the investigation apart from these two persons",,,

few others working in the Kothagiri Assistant Elementary Education Office were also found involved in the crime. The investigation has led to filing,,,

of 9 separate final reports against the persons involved in commission of crime such as forgery, misappropriation, creation of false documents and",,,

falsification of accounts.,,,

The present appeal Crl.A.No.844 of 2003 arises from the judgement in Special C.C.No.9 of 2003 wherein first accused S.K.Thathan (died,,,

pending appeal Crl.A.No.779 of 2003) and the second accused Thiru.R.Kittan appellant in Crl.A.No.844 of 2003 were found guilty. The,,,

appellant herein, for offences under section 467, 477-A, 409 r/w 109 IPC and section 13(2) r/w 13(1)(c) and (d) of PC Act is sentenced to",,,

under go 5 years R.I with fine of Rs.2,000/- each in default 6 months S.I. For offence under section 471 IPC two years R.I with a fine of",,,

Rs.1,000/- in default, simple imprisonment for 3 months. The period of sentence to run concurrently along with the sentence imposed in Special",,,

C.C.No.4 of 2001, Special C.C.No. 8 of 2001, Special C.C.Nos.10 of 2001, 11 of 2001 and 12 of 2001.",,,

Case of the Prosecution in brief:,,,

Between 24.01.1997 and 22.7.1997, while A-1 Thathan was the Assistant Elementary Education Officer (AEEO) A-2 Kittan was the Junior",,,

Assistant in the Assistant Educational Office at Kothagiri, Nilgiris District. A-1 as pay drawing officer, was responsible for drawing money from the",,,

Sub-treasury, presentation of bills towards the salary of the teachers. He was authorised to draw Teachers Provident Fund at the request of the",,,

respective teachers working under his jurisdiction and distribute it to them immediately. A-2 who was working under A-1 as Junior Assistant was,,,

entrusted with the responsibility of preparing the pay bills of the teaching staff, to maintain MTC 70 register, Cash book, disbursement register,",,,

undisbursement register, pay register etc.",,,

A-1 and A-2 having access to the records and dominion over the property viz salary and other bills like Provident Fund, had forged the",,,

signatures, created false documents and also dishonestly misappropriated cash entrusted to them and had obtained pecuniary advantage by illegal",,,

means. Precisely, in this case under appeal, the charges against them are during the above said period the A-1 and A-2 had drawn Rs.30,000/-",,,

from the Teacher''s Provident Fund(TPF) Account of Mr.Subramaniam and a sum of Rs.7,920/- from the Teachers Provident Fund Account of",,,

Mr.Sundaram but did not disburse it to them and misappropriated the same. They drew a sum of Rs.9,000/- and Rs.10,000/- from the TPF",,,

Accounts of PW.2 [Tmt.Reena] and PW.3[Tmt.Jameena] respectively. Obtained their signatures in the acquittance Register, but did not disburse",,,

the money and misappropriated the money. Drew a sum of Rs.16,089/- from the TPF account of Tmt.Suguna [PW.8], forged her signature and",,,

misappropriated the said money. Thereby committed offence of forgery, fabrication of documents, falsification of accounts, misappropriation and",,,

misconduct of obtaining pecuniary advantage by illegal means thereby committed offences punishable under section 477-A, 409 r/w 109 IPC and",,,

13(2) r/w 13 (1)(c) and (d) of PC Act, 1988.",,,

To substantiate the charges the prosecution has examined 12 witnesses and marked 64 exhibits. The trial court has found the prosecution,,,

proved charges relating to misappropriation of TPF of and held both the accused are guilty of offences charged and sentenced as stated supra.,,,

Aggrieved by the judgement, Crl.A.No.844 of 2003 is preferred by the second accused on the ground that, the trial court has miserable failed",,,

to note that the FIR filed after detail enquiry by Tmt.Umarani, does not mentioned his name as suspected accused. The responsibility of maintaining",,,

records like MTC 70 register, disbursement registers, cash book, UDP and pay register alone entrusted to him and the actual payment,",,,

correspondence regarding TPF advances and requisition are carried out under the supervision and direction of A-1 and he along have dominion,,,

over the affairs. To the alleged criminal breach of trust by public servant, it should satisfy the twin requirement namely entrustment or dominion with",,,

property and dishonest misappropriation or convention for his own use. In this case the prosecution has proved the appellant as Junior Assistant,,,

was entrust with the dominion over the property and taking advantage of the said dominion over the property, he has abetted A-1 to",,,

misappropriate the money. The case as projected by the prosecution against this appellant would not attract the ingredients of section 477A, 409",,,

IPC or the section 13(1) (c) and (d) of PC Act. In the absence of proof to show this appellant forged the acquittance registers or withheld the TPF,,,

money without disbursement after getting signatures from the teachers concern or without getting their acquittance, the trial court judgment of",,,

conviction is liable to be set aside.,,,

Per contra, the learned Additional Public Prosecutor,would submit that, A-1 as AEO has to periodically verify the registers regarding remittance",,,

and acquittance. He is the officer responsible for the supervising the proper maintenance of and records. He with aid and assistance of A-2 had,,,

appropriated the TPF money of 5 teachers. PW-2 [Tmt.Reena], PW-3 [Tmt.Jameena] had deposed that they applied for PF during the month of",,,

February 1997, without disbursing the TPF money, A-2 Kittan obtained their signature in the acquittance register without filling up the details. They",,,

got the PF money in the month of August only after representation regarding delay in payment.,,,

PW-8 Tmt.Suguna had deposed that after her retirement she applied for final payment of TPF. She was paid Rs.40,000/- and the balance",,,

Rs.16,089/- was not paid in spite of repeated demand. She got that money only on 28.07.1997. Therefore, the appellant being public servant",,,

along with his superior A-1 had abused the official position had obtained pecuniary advantage. Since the entrustment and dishonest,,,

Rank of

the

accused",Conviction under Section,Sentence imposed by the Trial Court,Sentence modified by this Court.

A2,"Under Section 467, 477-A, 409 IPC and

13 (2) r/w 13 (1) (c) & (d) of PC.Act

Under Section 471 IPC","To undergo 5 years R.I and a fine of Rs.

2,000/- each in default 6 months S.I

To undergo 2 years R.I and a fine of Rs.

1,000/- in default 3 months S.I","To undergo 1 year R.I and a fine of Rs.

2,000/- each in default 6 months S.I

To undergo 1 year R.I and a fine of

Rs.1,000/-in default 3 months S.I