A. Badharudeen, J
1. This criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as ‘Cr.P.C.’ for short) by the sole accused in C.C.No.13/2005 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, challenging the verdict of conviction and sentence dated 01.12.2012 in the above case.
2. Heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor in detail. Perused the relevant documents.
3. In this matter, the prosecution alleges commission of offences punishable under Section 13(2) r/w Section 13(1)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act, 1988' for short) as well as under Sections 409 and 477A of the Indian Penal Code (hereinafter referred to as 'IPC' for short). The prosecution case in brief is that, while the accused was working as U.D. Accountant at Government College Hostel for Men, Thiruvananthapuram, during the period from 01.06.1998 to 15.05.1999, he had dishonestly and fraudulently misappropriated a total sum of ₹93,719/- (Rupees ninety three thousand seven hundred and nineteen only), which had been entrusted to him in the capacity as a public servant during the period from 24.02.1999 to 30.03.1999. The further case of the prosecution is that, by way of making false entries in the cash book maintained at the hostel, the accused had claimed that ₹58,064/- (Rupees fifty eight thousand and sixty four only) was remitted in the District Treasury, Thiruvananthapuram on 24.02.1999 vide challan Nos. 5637 to 5640. It is also alleged that by way of making similar false entries in the cash book, showing that a sum of ₹35,655/-(Rupees thirty five thousand six hundred and fifty five only) was remitted in the District Treasury, Thiruvananthapuram on 30.03.1999 vide challan Nos.7171 and 7172, the accused had dishonestly misappropriated a total sum of ₹93,719/- (Rupees ninety three thousand seven hundred and nineteen only). The prosecution also alleges that in order to misappropriate the amounts mentioned above, the accused, who was the person maintaining the cash book of the hostel, had made falsified entries with an intention to defraud and thereby, he had committed the offence punishable under Section 477-A of IPC apart from the offences punishable under Section 13(2) r/w Section 13(1)(c) of the PC Act, 1988, and Section 409 of IPC.
4. The Special Court raised necessary issues and tried the case. PW1 and PW20 were examined and Exts.P1 to P41 were marked on the side of the prosecution. DW1 to DW3 were examined and Exts.D1 to D6 were marked on the side of the defence.
5. On appreciation of the evidence, the learned Special Judge found that the accused committed offences punishable under Section 13(2) r/w Section 13(1)(c) of the PC Act, 1988 as well as under Sections 409 and 477A of IPC and sentenced him as under:
“……… the accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹1,00,000/- (Rupees One Lakh only) and in default of the payment of fine to undergo rigorous imprisonment for three months under S.13(1)(c) r/w S.13(2) of P.C. Act, 1988. The accused is also sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹10,000/- (Rupees Ten thousand only) and in default of payment of fine to undergo rigorous imprisonment for two months under S.409 I.P.C. The accused is also sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹10,000/-(Rupees Ten Thousand only) and in default of payment of fine to undergo rigorous imprisonment for two months under S.477-A of I.P.C. It is directed that the substantive sentence of imprisonments shall run concurrently. Set off under S.428 of Cr.P.C. is allowed.”
6. In this case, multiple contentions have been raised by the learned counsel for the appellant/accused specifically pointing the fact that the accused was on leave from 16.02.1999 to 27.02.1999 and on the forenoon of 30.03.1999. According to him, the prosecution allegation is that he had misappropriated ₹58,064/- on 24.02.1999 after getting custody of the money without remitting the same to the Sub Treasury concerned. Similarly, the 2nd allegation is that the accused misappropriated ₹35,655/- on 30.03.1999. Thus, the contention raised by the learned counsel for the accused/ appellant is that on 24.02.1999 and 30.03.1999 the accused was on leave and therefore, he could not be fastened with the liability, either receiving the money or depositing the same. It is pointed out that PW5, who was the Warden during the relevant period, had collected the amount in the absence of the accused, and any shortfall, if any, in the matter of remittance is the responsibility of PW5. According to the learned counsel for the accused, in this matter, in order to save PW5, the accused was made as a scapegoat at the connivance of the Investigating Officer. The learned counsel read out the relevant evidence of PW1 to PW21 and with reference to Exts.P4, P6, P7 as well as Ext.D2 series. He also referred Exts.P19 and P2 documents. According to the learned counsel for the appellant/accused, the evidence tendered by DW1 to DW3 would show that the accused was absent on 24.02.1999 and 30.03.1999 and the entire prosecution case as against him would not sustain.
7. Per contra, the learned Public Prosecutor supported the prosecution case and argued that the accused alone was the person responsible for collecting the money and depositing the same in the Treasury. It was further contended that in Ext.P4, during the period from 16.02.1999 to 26.02.1999, his signatures in the relevant columns were drawn with red lines and that would show that he willfully failed to prove initials therein though he was working in the office during the relevant period with a view to screen himself from the responsibility of misappropriation of the amounts.
8. Having addressed the rival contentions, the points arise for consideration are :
1. Whether the Special Court went wrong in finding that the accused committed offence punishable under Section 13(1)(c) r/w 13(2) of the PC Act, 1988?
2. Whether the Special Court went wrong in finding that the accused committed offence punishable under Section 409 of IPC?
3. Whether the Special Court went wrong in finding that the accused committed offence punishable under Section 477A of IPC?
4. Whether the verdict would require interference?
5. The order to be passed?
9. Points Nos.1 to 5
In order to address the case, it is necessary to evaluate the evidence of PW3, PW4 and PW5. PW3 had been working as Warden of the Hostel from May 1995 to 31.8.1998. He had deposed that making entries in the Cash Book and administration of the Hostel is vested with U.D. Accountant. He had further deposed that in Ext.P14 which is the cash book for the period 19.5.1998 to 24.9.1998, handing over of charge in favour of the accused has been recorded and that particular entry has been marked as Ext.P14(a). PW3 had also deposed that when he was working as warden, the treasury remittances were made by the U.D. Accountant and the Peon entrusted by him. According to him, a perusal of P.D Account pass book would reveal the actual remittance particulars made by the warden and U.D. Accountant. He had further deposed that the U.D. Accountant was expected to verify the pass book if he had entrusted others to remit the amounts before the Treasury. It was also brought out from PW3 that when he had taken charge, the cash balance was handed over to him by one Rajendran who was the then U.D. Accountant. According to him, in Ext P4 Attendance Register, whether the accused was absent or whether he was on leave had not been recorded.
10. PW4, while working as Superintendent of Directorate of Collegiate Education was a member of audit staff, who audited the accounts of this hostel. As per Ext.P15 audit report, suspicious transaction of ₹30,640/- was recorded. He had further stated that in pages 3 and 4 of the audit report remittance of ₹93,719/- vide six suspicious challans were noted. He had also stated that the missing challan periods mentioned in Ext.P15 was the period when the accused was working as U.D Accountant. PW4 had further stated that in the PD pass book also he could not find out entries with respect to the missing challans. PW4 had also stated that the accused who was working as U.D. Accountant of the Hostel was known to him and it was his responsibility to maintain the Cash Book and to remit amounts in the Treasury, PW4 had further stated that in the absence of entries in the cash book during the period 22.04.1999 to 03.05.1999, substituted cash book was prepared for the purpose of auditing. He had further deposed that when Ext.P15 was prepared, a sum of ₹95,240.68 was found as suspected amount and out of it ₹93,719/- was relating to suspicious remittance of chalan and the balance sum of ₹1,521.68 was unaccounted. He had further deposed that challan Nos.5635 and 5636 entered in Ext.P6 cash book are Exts.P17 and P18 respectively. According to him, challan Nos.7169 and 7170 mentioned in Ext.P6(c) are Exts.P19 and P20 respectively.
11. PW5 had been working as Warden of the Men's Hostel during the period 31.08.1998 to 21.05.1999. According to him during his period, making entries in the Cash Book and making cash remittance in the treasury were the duties of the accused who was working as U.D Accountant. He had further stated that even though it was his responsibility to verify the pass book of PD Account, the accused had never shown PD pass book and the usual practice was only to show the remitted challan receipts. He had also stated that in Exts.P6(a) and P6(b) cash transactions were written in the handwriting of the accused who had also put his initials therein. According to PW5, the challans in respect of cash remittances were kept by the accused and in Exts.P17 to P20, the handwriting are of the accused whose signature in those documents were separately marked as Exts.P17(a), P18(a), P19(a) and P20(a). When PW5 was recalled and further examined after the further investigation under Section 173(8) of Cr.P.C., he had stated that even though his initials were available on Exts.P17 to P20, in Ext.D2 series did not bear his initials. He had also stated that Ext.D2 series were not available at the time of auditing.
12. In this case, the question to be considered is, whether there was entrustment of the money as alleged by the prosecution, which is covered by Ext.D2 series to the accused and in turn, there was misappropriation by not remitting the same by the accused? It is relevant to note in this context that as far as the challans prepared for remitting the amount alleged to be misappropriated on 24.02.1999 and 30.03.1999, according to the learned counsel for the accused, photocopies of the same were obtained under the Right to Information Act by the accused and produced before the court and during cross-examination of PW5, the same got marked as Ext.D2 series. A perusal of the evidence of PW5, it could be seen that during cross-examination of PW5 by the learned counsel for the accused, Ext.D2 series challans were shown to PW5 and on perusal of the same, PW5 deposed that those documents were missing till that date. But the evidence of PW5 would not show that Ext.D2 series marked were the photocopies obtained by RTI Act and Ext.D2 series as such available in the case records in the form of original challans also would suggest that Ext.D2(a) to Ext.D2(e) were the original challans tendered in evidence. The entire case of the prosecution rests on the allegation that the amount collected as per Ext.P6(a) and Ext.P6(b), was in the custody of the accused and the further case of the prosecution is that instead of remitting the same, he falsified the records including Ext.P7 cash book and thereby he had misappropriated the same. Even though PW16 and PW17 deposed that copies of Ext.D2 series were issued to the accused, such copies were not available in evidence, instead, Ext.D2, the originals, were tendered in evidence. PW15 and PW16 given evidence that no initials were seen in Ext.D2 series.
13. Probably, to circumvent the discrepancies in Ext.D2 series, the accused had taken steps to examine DWs 1 to 3. DW1 deposed that he was working as Cook at Men's Hostel and Sri.N.Sasidharan who was working as Peon in that Hostel was a physically handicapped person, in the absence of the accused, he had accompanied him to the Treasury for remittance of amounts on 24.2.1999 and 30.3.1999. It is pertinent to note, in cross-examination, he could not remember any other dates on which he had accompanied Sri.N. Sasidharan to the Treasury. The evidence given by DW1 that even after the elapse of 13 years, he is in a position to remember the exact two dates on which he alleged to have been accompanied Sri.N.Sasidharan appears to be totally unbelievable. That apart, the consistent version of the accused is that he was absent in the Hostel on 24.02.1999 as well as in the pre-lunch session on 30.03.1999, but in Exts.P17 to P20 and Ext.D2 series, the remitter of the said documents is none other than the accused. So, it is clear that DW1 had been brought by the accused only to substantiate his contention that he was not responsible for remittances of the disputed amounts against the contents of Exts.P17 to P20 and Ext.D2 series.
14. The accused had also chosen to examine DW2 and his version is that on 24.2.1999 at about 4 p.m, at the instance of PW5, who was working as Warden, he had gone to the house of the accused and taken him to the quarters of the Warden and in front of that quarters, the accused had written necessary entries in the Cash Book by way of placing the same on the bonnet of a car. It is the version of DW2 in cross-examination that he could remember the exact date of the alleged transaction as he had occasion to meet the members of the audit party, prior to one week from the date of his examination before the Court, when he was travelling in a train. The evidence of DW2 appears to be artificial and unbelievable.
15. DW3 was working as U.D. Accountant in the same Hostel prior to the taking over of the charge by the accused. His evidence is that even though he was working in another establishment, on 24.02.1999 as well as on 30.03.1999, he had gone to the Hostel to assist the audit party in order to trace out the records during this period. He had also deposed that on 24.02.1999, the accused was on leave and on 30.03.1999 he was not available in the Hostel during the pre-lunch session. According to him, one N.Sasidharan was deputed by the warden to remit cash in the Treasury on both those days.
16. On perusal of Ext.D2 series, the same would show that they are challans prepared for remittance of the disputed amounts misappropriated by the accused. The case of the prosecution is that the accused who got entrustment of the above sum failed to deposit the amount in the Bank and the Bank statements would not show payment of ₹93,719/-. Here comes the significance of production of Ext.D2 series, the original challans prepared by the accused for remittance, even though no such remittance was made as per the Bank account. It is true that in Ext.P4 attendance book, the accused was recorded as absent from 16.02.1999 to 27.02.1999 and he was shown as on leave in the morning of 30.03.1999.It is relevant to note further that in Ext.P4, the attendance register, PW5, who is the Warden, did not sign on several days, including the period covered by the remittance. It appears from the materials that there was a practice of performing duties without signing the attendance register. One of the contentions raised by the learned counsel for the accused/appellant as ground (Z) is that all the treasury remittance of 24.02.1999 was made at the instance of PW5 by Sri.N.Sasidharan who handed over Ext. D2 series for entry in the cash book on the evening of 24.02.1999. It is pointed out that unless the investigating officer establishes with evidence that who created the treasury seal and who affixed the treasury seal on Ext.D2 series challans, the finding that the accused misappropriated the amount could not be justified. This contention was specifically raised as ground (Z) and also at the time of argument on the premise that Ext.D2 series against which, this strong discontent was taken by the accused are the photocopies of the Right To Information Act. However, in reality, as I have already observed, Ext.D2 series are the original challans prepared for remittance of the amount alleged to have been misappropriated, which were in the custody of the accused and therefore, without much ado, it can be held that Ext.D2 series were the creation of the accused to show the remittance by himself, even without remitting the amount to the Bank by affixing forged seals therein. This evidence also would fortify the fact that the accused worked in the office without putting attendance in the Register.
17. It is true that as stated by the learned counsel for the accused, in order to attract Section 409 of IPC, there must be evidence to establish that the accused was entrusted with the Government fund. The accused even though denied having obtained the entrustment as alleged by the prosecution by fastening the said liability upon PW5, the production of Ext.D2 series shows that the accused had prepared these challans to show the said remittance without remitting to the Bank as already come in evidence. The entrustment for the purpose of Section 409 IPC is proved.
18. 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.”
19. Section 409 of IPC 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:
“316(5): 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.”
20. 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.
21. 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.
22. 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 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 Sadhupati Nageswara Ra v. State of Andhra Pradesh’s case (supra).
23. The gravamen of the offence under Section 409 of IPC is 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 home the dishonest intention.
24. Tracing the ingredients of the offence punishable under Section 477A of IPC, Section 477A provides as under:
“Section 477A – Falsification of Accounts : “Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
25. Section 344 of BNS is corresponding to Section 477A of IPC. The same reads as under:
“344. Falsification of accounts:- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
26. The three ingredients to prove the offences are:
(i) That at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity ;
(ii) That he should destroy, alter, mutilate or falsify any book, electronic record, paper, writing, valuable security or account, which belongs to or was in the possession of his employer and
(iii) The act should have been done willfully and with an intention to defraud. To convict a person under section 477A of the IPC, the prosecution has to prove that there was a willful act, which had been made with an intent to defraud and while proving “Intention to defraud”, the prosecution has to further prove the two elements that the act was an act of deceit and it had caused an injury. In the present case, there may be an injury, but there is no deceit.
27. For the offence under Section 477A of IPC, what has got to be proved is twofold viz., that the person who commits the offence is a clerk, officer or servant, and secondly, that there was intent to defraud. It is sufficient, to satisfy the words of the section, to prove that the person charged under this section is one who undertakes to perform and does perform the duties of a clerk or servant whether in fact he is a clerk or servant or not, and though he is under no obligation to perform such duties and receives no remuneration. The emphasis is upon the words "in the capacity of a clerk, officer or servant”.
28. To attract section 477A, the-employee concerned must destroy, alter, mutilate or falsify book or accounts etc, of the employer, inter alia, with intent to defraud. The term "intend to defraud" has already been explained in Section 25 of IPC. It contains two elements, viz., deceit and injury. A person is said to deceive another when by practising suggestio falsi or suppressio veri or both, he intentionally induces another to believe a thing to be true. "Injury" defined in Section 44 of IPC means any harm whatever illegally caused to any person in body, mind, reputation and property. In the decision reported in [1976 CrLJ 913 (SC) : 1976 Cr LR (SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman Singh v. Delhi Administration, the Apex Court held that whenever the words "fraud" or "intent to defraud" or "fraudulently" occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, firstly, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury to a risk of possible injury by means of that deceit or secrecy. Where the accused prepared a false travelling allowance bill, presented it to a sub-treasury and withdrew the amount, it meant securing an advantage by deceitful act and causing corresponding loss to the State. The offence will fall under section 477A of IPC and the fact that the accused subsequently paid over the entire amount is not a matter to be considered.
29. On scrutiny of evidence of DW1 to DW3, the same could not be believed, particularly as against Ext.D2 series and as against the prosecution evidence discussed as aforesaid. The production of Ext.D2 series, the challans prepared for remitting the disputed sum by the accused before the Special Court in original form, would speak voluminous on the fact that the accused got entrustment of the amount covered by Ext.D2 series and he had prepared Ext.D2 series for remittance of the same in the Bank. But he did not remit the same in the Bank and he had misappropriated the same.
30. The production of Ext.D2 series in original would show that the accused himself falsified the records and misappropriated the amount as alleged by the prosecution. If so, the finding of the Special Court that the accused committed offences under Sections 409 and 477A of IPC as well as under Section 13(2) r/w 13(1)(d) of the PC Act, 1988, is only to be justified. Therefore, the conviction entered into by the Special Court for the said offences found to be sustainable. On perusal of the sentence and taking note of the gravity of the offences alleged by the accused, I am of the view that the sentence imposed by the Special Court for the said offences also are reasonable and no interference by this Court is required.
In view of the above, this criminal appeal fails and is dismissed.
The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the special court forthwith to undergo the sentence, failing which the special court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the jurisdictional court for information and compliance.
