A.P.Benoy vs State Of Kerala on 7 April, 2026

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    Kerala High Court

    A.P.Benoy vs State Of Kerala on 7 April, 2026

                                                               2026:KER:31007
    
                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
    
                                     PRESENT
    
                 THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    
          TUESDAY, THE 7TH DAY OF APRIL 2026 / 17TH CHAITHRA, 1948
    
                              CRL.A NO. 1252 OF 2018
    
               CRIME NO.VC/01/2008/KTM/2008 OF VACB, KOTTAYAM
    
     AGAINST THE JUDGMENT DATED 29.09.2018 IN C.C. NO.1 OF 2011 ON THE
    
        FILES OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
    
    
    APPELLANT/ACCUSED:
    
               A.P.BENOY
               AGED 48 YEARS
               AMMANKUZHIYIL HOUSE, CHOTTIKKARA, MUNDAKKAYAM
    
               BY ADVS.
               SRI.SOORAJ T.ELENJICKAL
               SMT.HELEN P.A.
               SMT.STEPHANIE SHARON
               SHRI.ATHUL ROY
    
    
    RESPONDENT/COMPLAINANT:
    
               STATE OF KERALA
               THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, VACB,
               KOTTAYAM REPRESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM
    
    
               SPL PP - RAJESH.A, SR PP - REKHA.S
    
    
         THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2026,
    THE COURT ON 07.04.2026 DELIVERED THE FOLLOWING:
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                                                                       "C.R"
                                   JUDGMENT
    

    Dated this the 7th day of April, 2026

    The sole accused in C.C. No.1/2011 on the files of

    SPONSORED

    the Court of the Enquiry Commissioner and Special Judge,

    Kottayam, has filed this appeal, under Section 374(2) of the

    Code of Criminal Procedure, 1973 [hereinafter referred as

    Cr.P.C.’ for short], challenging the conviction and sentence

    imposed by the Special Judge, against him as per the

    judgment dated 29.09.2018. The State of Kerala,

    represented by the Special Public Prosecutor is arrayed as

    the respondent herein.

    2. Heard the learned counsel for the appellant and

    the learned Special Public Prosecutor, in detail. Perused the

    verdict under challenge and the records of the Special Court.

    3. Parties in this appeal shall be referred as

    ‘accused’ and ‘prosecution’, hereafter.

    4. The prosecution case is that, the accused, while

    working as the cashier of K.S.E.B. Section Office at Manimala

    in Kottayam District, during the period from 1-3-2007 to 2-5-
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    2007, dishonestly and fraudulently misappropriated a total

    amount of Rs.1,74,979/-, which was collected by him from

    the consumers. Further, the accused has falsified records for

    misappropriating the above amount. Thus, the accused by

    illegal means and by abusing his position as public servant,

    obtained pecuniary advantage to the extent of said amount.

    On this premise, the prosecution alleges commission of

    offences punishable under Sections 13(1)(c) and 13(1)(d)

    read with 13(2) of the Prevention of Corruption Act, 1988

    [hereinafter referred as ‘P.C. Act, 1988‘ for short] and under

    Sections 406, 420 and 477A of Indian Penal Code

    [hereinafter referred as ‘IPC‘ for short], by the accused.

    5. After framing charge for the offences punishable

    under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the

    P.C. Act, 1988 and under Sections 409 and 477A of IPC, the

    Special Court recorded evidence and completed trial. During

    trial, PWs 1 to 24 were examined and Exts.P1 to P81 were

    marked on the side of the prosecution. Exts.D1 to D7(a) were

    marked on the side of the defence, out of which, Exts.D1 to

    D4 were the contradictions recorded as that of PW4, PW5

    and PW14.

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    6. On appreciation of evidence, the Special Court

    found that the accused was guilty for the offences

    punishable under Sections 13(1)(c) and 13(1)(d) read with

    13(2) of the P.C. Act, 1988 and under Sections 409 and 477A

    of IPC. Accordingly, the accused was convicted for the said

    offences and sentenced as under:

    “Considering all these facts and circumstances,
    I sentence the accused to undergo Rigorous
    Imprisonment for three years each and to pay a fine
    of ₹25,000/- (Rupees twenty five thousand only)
    each for the offence under Secs.13(1)(c) and 13(1)

    (d) r/w Sec.13(2) of the Prevention of Corruption Act,
    1988 and Secs.409 and 477A of IPC, in default of
    payment of fine the accused has to undergo Simple
    Imprisonment for a period of six months each. The
    substantive sentences shall run concurrently. The set
    off for the period of detention which the accused had
    undergone in the jail during the investigation is
    allowed under Sec.428 Cr.P.C.”

    7. The learned counsel for the appellant/accused

    argued that, the prosecution broadly divided the alleged

    misappropriation under two heads viz. ‘shortage in the cash

    chest’ to the tune of Rs.78,520/- and ‘broken collection’

    amounting to Rs.96,459/-. Thus, the total amount alleged to
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    be misappropriated by the accused would come to

    Rs.1,47,979/-. According to the learned counsel for the

    accused, regarding the allegation as to shortage of amount

    in the cash chest, the evidence relied on by the prosecution

    is that of PWs 1 to 3, 15 and 16 as well as Ext.P5 chest

    inspection mahazar. Apart from that, Exts.P1 and P1(a) cash

    remittance slips as well as Exts.P3(a) and P14, the SOP-10

    document proved to be prepared by the accused were also

    relied on by the prosecution. But, the prosecution miserably

    failed to produce the receipts showing the split up collection

    of the amount by the accused. According to him, Exts.P1,

    P1(a), P3 and P14 supported by the evidence of PWs 1 to 3,

    15 and 16 could not be sufficient to prove that the accused

    collected Rs.78,520/- and failed to remit the same. The

    learned counsel for the accused pointed out further that,

    Ext.P66 letter issued by the accused to the Deputy Chief

    Engineer, Electrical Circle, Kottayam dated 16.10.2007, for

    which the prosecution has given much emphasis, in no way

    would show categoric admission that Rs.78,520/- or

    Rs.1,52,228/- shown therein were misappropriated by the

    accused. Therefore, no credence can be given to the same
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    and he has pointed out relevant portions of the evidence of

    PW1, PW13, PW15 and PW16 in this regard.

    8. Regarding the allegation as to misappropriation of

    broken collection amounting to Rs.96,459/-, the contention

    raised by the learned counsel for the accused is that, as per

    Exts.P11, P12, P18, P28 series, P30 series, P34, P34(a), P38,

    P40, P40(a), P42, P43 and P44, the collected amounts has

    been deposited by the accused in the bank and according to

    him, Ext.P25 remittance showing surplus amount would

    substantiate the same. Therefore, in the absence of evidence

    adduced by the prosecution to show that there was failure to

    remit the amount collected by the accused as per Exts.P11,

    P12, P18, P28 series, P30 series, P34, P34(a), P38, P40,

    P40(a), P42, P43 and P44 and in view of remittance made as

    per Ext.P25, the prosecution failed to establish that the

    amount collected as per Exts.P11, P12, P18, P28 series, P30

    series, P34, P34(a), P38, P40, P40(a), P42, P43 and P44 was

    misappropriated by the accused. It is pointed out by the

    learned counsel for the accused further that, it is the duty of

    the prosecution to prove the prosecution case beyond

    reasonable doubt and any sort of doubt in the prosecution
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    case would give benefit to the accused. It is also pointed out

    that, Ext.P66 could not be considered as an admission at the

    instance of the accused, within the ambit of either under

    Section 17 or Section 21 of the Indian Evidence Act, since

    the same would not suggest any inference as to the relevant

    facts of this case. The learned counsel for the accused also

    attacked Ext.P48 prosecution sanction proved by examining

    PW18, on the ground that the authority failed to look into the

    prosecution records, while granting sanction. Therefore, the

    sanction itself is vitiated and the same also to be adjudged in

    favour of the accused. Thus, the learned counsel for the

    accused pressed for interference in the impugned verdict.

    9. Repelling the contentions raised by the learned

    counsel for the accused, the specific points argued by the

    learned Special Public Prosecutor are that, in this case,

    inspection of cash chest was conducted by PW2, the

    Assistant Engineer on 02.05.2007 in the presence of PW1,

    the Assistant Executive Engineer, PW3, the Overseer, PW4,

    the Lineman, PW5, the Worker, PW15, the Cashier and PW16,

    the Senior Assistant. As a result of the inspection, a mahazar

    was prepared as Ext.P5 by PW2 and the same would show
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    shortage of Rs.78,520/-. According to the learned Special

    Public Prosecutor, the prosecution case is that, as on

    30.04.2007, the total amount collected by the accused was

    Rs.87,825/-, out of which, during inspection by PW2 for

    preparing Ext.P5 mahazar, only Rs.9,305/- was found in the

    chest and the remaining amount was misappropriated by the

    accused. The same is fortified by the evidence as that of

    Exts.P1, P1(a), P3(a) to P3(g) and P14, supported by Ext.P31

    audit report prepared by PW14. Therefore, though the

    prosecution did not produce individual receipts showing the

    said collection, the above documents itself would show that

    the total amount collected by the accused was Rs.87,825/-,

    out of which Rs.78,520/- failed to be deposited. In addition to

    that, Ext.P66 letter issued by the accused to the Deputy

    Chief Engineer, Electrical Circle, Kottayam, would fortify the

    said misappropriation. Therefore, the misappropriation under

    the head ‘shortage in cash chest’ has been substantially

    proved by the prosecution.

    10. It is pointed out by the learned Special Public

    Prosecutor that, as far as the allegation of misappropriation

    by the accused under the head ‘broken collection’ coming to
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    the tune of Rs.96,459/- is concerned, the amount bifurcated

    as per Exts.P11, P12, P18, P28 series, P30 series, P34,

    P34(a), P38, P40, P40(a), P42, P43 and P44 are extracted as

    under:

         Sl. No.   Exhibits         Amount           Date
         1         P11              6,212/-          05.03.2007
         2         P12              7,306/-          05.03.2007
         3         P18              5,107/-          01.03.2007
         4         P28              20,267/-         11.04.2007
         5         P30              20,267/-         14.03.2007
         6         P34              3,617/-          02.03.2007
         7         P34(a)           2,679/-          07.03.2007
         8         P38              1,838/-          27.03.2007
         9         P40              1,159/-          29.03.2007
         10        P40(a)           1,287/-          29.03.2007
         11        P42              67/-             07.04.2007
         12        P43              76/-             07.04.2007
         13        P44              17,490/-         07.04.2007
                    Total              Rs.96,456/-
    
    
    
    

    11. It is also pointed that, in addition to that as per

    Exts.D6 and D7 pay slips, as on 04.05.2007 i.e. after

    registration of this crime on 03.05.2007, as evident from

    Ext.P66, the accused remitted Rs.78,520/- and requested

    permission to remit the balance amount of Rs.1,52,228/- to

    clear the audit objection. It is pointed that, even though in
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    Ext.P55, excess amount than the amount covered by

    Exts.P11, P12, P18, P28 series, P30 series, P34, P34(a), P38,

    P40, P40(a), P42, P43 and P44 were shown, the same would

    not include the amount collected by the accused and the

    amount so remitted was the amount collected and deposited

    by other cashiers and not by the accused. This aspect would

    be found from Ext.P31 audit report, supported by Exts.P66

    and P67.

    12. Apart from that, the learned Special Public

    Prosecutor submitted that, from the oral evidence of PW2, it

    is revealed that the accused was given the work to collect

    the cash from day code 3A-1 to 25, 3B-1 to 25, 1A-13 to 25,

    1B-13 to 25 and street light charges, LT-V and division cash.

    To prove the above aspect prosecution relied on Ext.P2(a)

    office order. Ext.P2(a) office order is seen made in page

    No.100 of Ext.P2 Work Allocation register. In page No.101 of

    Ext.P2 Register the work allocated to the other cashier,

    PW15 is also seen stated i.e, PW15 was given the work to

    collect the cash from the Day code 2A-1 to 25, 2B-1 to 25,

    1A-1 to 12, 1B-1 to 12, LT-IV and 10KW. PW15, the other

    cashier has not disputed Exts.P2(a) and P2(b) work allocation
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    order of the cashiers at Manimala Section office. Exts.P2(a)

    and P2(b) work allocation orders are seen made and signed

    by PW2. The oral evidence of PWs 2 and 14 reveals that by

    issuing Exts.P11 and P12 receipts, the accused had collected

    Rs.6,212/- and Rs.7,306/- from PW7, owner of Hotel Paradise

    at Manimala and that the said amount had not been remitted

    in the bank. The said amount did not find a place in Exhibit

    P6 Consumer Personal Ledger as well. PW16, the Senior

    Assistant stated that the handwriting in Exhibits P11 and 12

    are that of the accused.

    13. According to the learned Special Public Prosecutor,

    Exhibit P33 is the Demand Collection Register. Demand for

    Rs.5,107/- can be seen in Page 75 of Exhibit P33, which was

    marked as Exhibit P33(a). But collection of the amount is not

    entered in Exhibit P33(a). Both the entry regarding Exhibit

    P18 and P33 (a) did not enter in Exhibit P9 Consumer

    Personal Ledger. The relevant page is marked as Exhibit

    P9(a). PW16 Senior Assistant stated that the hand writing in

    Exhibit P18 is that of the appellant. Exhibit P28 series and

    P30 series receipts are seen issued to Manimala Grama

    Panchayath as electricity charge of the street lights. PW13,
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    U.D.Clerk, Manimala Panchayath has given oral evidence

    regarding the remittance of Rs.20,267/- each at K.S.E.B

    Manimala Electrical Section Office as per Exhibits P27 and

    P29 contingent bills. PWs.2 and 14 have stated that the

    accused had not remitted the amount in the bank which he

    collected by issuing Exbt.P28 series and P30 series receipts.

    The evidence of the above witnesses that the said amounts

    had not been remitted in bank is seen amply corroborated by

    Ext. P15 Remittance Register and Ext. P25 Bank statement.

    14. In Exhibits P34 and P34(a), PW14 it is stated that

    P34 and P34(a) receipts are issued from P35 receipt book.

    The amounts as per Exhibit P34 and P34(a) did not find a

    place in the carbon copy of Exhibit P35(a) receipt book. The

    amounts as per Exhibits P34 and 34(a) have not been

    entered in Exhibit P9 Consumer Personal Ledger. In short,

    though Exhibits P34 and 34(a) receipts are issued to

    consumer No.2137, the amounts are not entered in Exhibit

    P9. PW16, Senior Assistant stated that the handwriting in

    P34 and P34(a) is that of the accused. Exhibits P38 receipt

    was issued to Consumer No.5494. Exhibit P17 is receipt book

    No.42873. Pink and carbon copies of Exhibit P38 receipt are
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    marked as Exhibit P17(a) and P17(b) respectively. The

    amount as per Exhibit P38 receipt was not entered in Exhibit

    P7 Consumer Personal Ledger. PW16, Junior Assistant stated

    that the handwriting in Exhibit P38 is that of the accused.

    Exhibit P40 receipt is issued to consumer No.5217. Exhibit

    P40(a) is issued to Consumer No.7768. The pink and carbon

    copies of Exhibits P40 and P40(a) receipts are issued from

    Exhibit P41 receipt book. The amount as per Exhibit P40 is

    entered in Exhibit P8 Consumer Personal Ledger only on

    14.11.2007, though it was received on 29.3.2007. The

    amount as per Exhibit P40(a) is not at all entered in Exhibit

    P8 Consumer Personal Ledger. PW16, Senior Assistant stated

    that the handwriting in Exhibit P40 and P40(a) are that of the

    accused.

    15. According to the learned Special Public Prosecutor,

    the amount as per Exhibit P42 is Rs.67/- (Receipt No. 125.

    Book No.42857). The amount as per Exhibit P43 receipt is

    Rs.76/- (Receipt No. 124, Book No.42,857/-). The amount as

    per Exhibit P44 is Rs.17,490/- (Consumer No. 1269 receipt

    No. 123 Book No.42857). The bill book containing Exhibits

    P42, 43 and 44 are marked as Exhibit P45. The pink and
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    carbon copies of Exhibit P45 are marked as P45(a) and

    P45(b). Exhibits P42 to P44 receipts are issued while

    remitting electricity charges for street lights. The amounts as

    per Exhibit P42 to P44 were not entered in Exhibit P39

    demand collection register. The relevant page for the month

    of April in Exhibit P39 is marked as P39(a). So also the said

    amounts are not entered In Exhibit P10 Consumer Personal

    Ledger. The relevant page in Exhibit P10 is marked as Exhibit

    P10(a). In SOP 10, page No.15 dated 7.4.2007 (Exhibit P3),

    there also the amounts as per Exhibits P42 to P44 are not

    stated. The relevant page in Exhibit P3 is marked as Exhibit

    P3(a). Exhibit P46 is the bill book intended for electricity

    charges for street lights. There the amount as per Exhibits

    P42 to 44 are not stated as well. PW16, Senior Assistant

    stated that handwriting in Exhibits P42 to 44 are that of the

    accused.

    16. It is submitted by the learned Special Public

    Prosecutor that, in view of clear voluntary admission on the

    part of the accused regarding the misappropriation as

    evident from Ext.P66 letter to the Executive Engineer

    informing the remittance of shortage in the cash chest and
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    requesting time for the payment of the broken collection

    found in Ext.P31 audit report, the misappropriation alleged

    was admitted by the accused. Thereafter, pursuant to

    Ext.P68 letter of the Executive Engineer, the accused had

    remitted a total amount of Rs.1,67,514/- vide Ext.D5 receipt

    dated 14-11-2007. The above payment was made by the

    accused as his liability fixed in Ext.P31 Audit report. The act

    of the accused in paying the above amount, amounts to

    admission as defined under Section 17 of the Indian

    Evidence Act and the same is admissible under Section 21 of

    the said Act.

    17. Considering the admission made by the accused in

    Exhibit P66 letter, nothing is on record to disbelieve

    Ext.P2(a) work allocation to the accused. It is evident from

    the oral evidence of PW1, the Assistant Executive Engineer

    and PW14, Auditor that the accused, by issuing the aforesaid

    receipts, collected a total amount of Rs.96,459/- from the

    consumers and the same had been misappropriated by him

    without remitting in the bank and not furnishing the carbon

    copies of the said receipts to PW16, Senior Assistant for

    making entries in Exts.P6 to P9 Consumers Personal Ledgers.

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    Thus, according to the learned Special Public Prosecutor, the

    prosecution case is proved beyond reasonable doubt and the

    impugned verdict does not require any interference.

    18. In view of the rival submissions, the points arise

    for consideration are:

    1. Whether the Special Court is justified in
    finding that the accused committed the offence
    punishable under Section 13(1)(c) read with 13(2) of
    the P.C. Act, 1988?

    2. Whether the Special Court is justified in
    finding that the accused committed the offence
    punishable under Section 13(1)(d) read with 13(2)
    of the P.C. Act, 1988?

    3. Whether the Special Court is justified in
    finding that the accused committed the offence
    punishable under Section 409 of IPC?

    4. Whether the Special Court is justified in
    finding that the accused committed the offence
    punishable under Section 477A of IPC?

    5. Whether the verdict of the Special Court
    would require interference?

    6. Order to be passed?

    19. Point Nos.1 to 4:- Adverting to the rival

    submissions, when addressing the question as to whether

    the accused got entrustment of Rs.78,520/- as the alleged
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    shortage in the cash chest and also Rs.96,459/- as broken

    collection, the learned Special Judge has given much

    emphasis to the evidence of PWs 1 to 5 and 14 to 16. Apart

    from that, Exts.P1, P1(a), P3(a), P14, P5 mahazar prepared

    by PW2 as well as Ext.P31 audit report prepared by PW14

    and the evidence of PW15, the Cashier and PW16, the Senior

    Assistant were also relied on by the learned Special Judge.

    20. It is discernible from Exts.P1 and P1(a) cash

    remittance slips prepared for remitting Rs.20/- as Division

    cash and Rs.87,845/- as current charge in the account of

    Revenue that the above documents were prepared by the

    accused bearing date 02.05.2007 for remitting the said

    amounts in the bank. Ext.P14 is the receipt book prepared by

    the accused and Ext.P3(a) is its carbon copy, as per which,

    the total collection on 30.04.2007 is shown as Rs.87,825/- as

    current charge and Ext.P4(a) SOP-6 was prepared showing

    collection of Rs.20/- as Division cash on 30.04.2007. In

    addition to that, PW2, who prepared Ext.P5 stated in the

    report that, as the amount collected from the consumers

    during the month April, 2007 was found less than the

    amount collected in the previous months, a list of the
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    consumers, who defaulted in paying the electricity charge,

    was prepared with the help of S.O.P.13 consumer personal

    ledger in the custody of Senior Assistant and the same was

    given to PW4, the lineman for disconnection. When PW4,

    lineman and PW5, worker went for disconnecting the

    defaulters’ electric supply, it was informed that some of the

    consumers had paid the current charge, the Overseer had

    gone there and obtained the receipts from such consumers

    and verified them with Exts.P6 to P9 Consumers Personal

    Ledgers and found that the amounts covered under these

    receipts have not been entered in the said ledgers. So, he

    informed the matter to the Executive Engineer and as per

    the direction of the Executive Engineer he conducted

    inspection of the cash chest on 02-5-2007. Apart from that,

    the learned Special Judge given much emphasis to Ext.P5,

    supported by Ext.P57 Expert report that would suggest that

    Ext.P14 SOP-10 was written by the accused and the same is

    proved through PW19 as well as from the handwriting in

    Ext.P14 SOP-10, supported by Ext.P10.

    21. It is true that, individual receipts showing

    collection of total amount of Rs.96,459/- not produced by
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    the prosecution and this is the basis on which, the learned

    counsel for the accused argued that the prosecution failed to

    prove the alleged collection of Rs.78,520/- by the accused.

    On reading the evidence available, it could be seen that the

    accused prepared Ext.P14 SOP-10 showing total collection as

    Rs.87,545/-, but he had kept only Rs.9,305/- in the chest. He

    also prepared Exts.P1 and P1(a) cash remittance slips with

    date 02.05.2007 to remit the total sum of Rs.96,459/-. It is

    relevant to note that, on 03.05.2007, the shortage in the

    amount was detected and on the basis of which, crime was

    registered on 03.05.2007 and as per Exts.D6 and D7, the

    original and duplicate pay-in-slips, an amount of Rs.78,500/-

    and Rs.20/- remitted by the accused on 04.05.2007.

    22. It is evident that, the collected amount should

    have been remitted in the bank immediately on the next day

    i.e. on 02.05.2007. In the instant case, it is for the said

    purpose the accused prepared Exts.P1 and P1(a) cash

    remittance slips. But, while preparing Ext.P5 mahazar, PW2

    could not found the entire amount of Rs.87,545/- and he

    could found only Rs.9,305/- and accordingly, shortage of

    Rs.78,520/- was found, which admittedly remitted by the
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    accused as per Exts.D6 and D7 on 04.05.2007. In this

    connection, Ext.P66 letter issued by the accused to the

    Deputy Chief Engineer, which is an admitted document by

    the accused, assumes significance. As per which, it was

    stated that an amount of Rs.78,520/- shown as shortage in

    the cash chest has been remitted by the accused on

    04.05.2007 and the copy of the pay-in-slip submitted to the

    Assistant Engineer, Electrical Sector, Manimala on the same

    day. As per Ext.P66, the accused also requested to grant

    permission to remit the balance amount of Rs.1,52,228/- to

    clear the audit liability.

    23. Going by the evidence tendered supported by

    Ext.P66, there is no reason to hold that misappropriation of

    Rs.78,520/- as alleged by the prosecution failed to be proved

    by the prosecution and the evidence available are

    substantially sufficient to prove that the accused had

    misappropriated Rs.78,520/- under the heard ‘shortage in

    the cash chest’.

    24. Coming to the alleged misappropriation of an

    amount of Rs.96,459/- under the head ‘broken collection’, in

    the table showing collection and remittance in the bank
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    account, in the reply note placed by the learned Special

    Public Prosecutor, it has been stated as under:

    Sl.No. Exhibits with Date of Remittances in Date of credit in
    as per amounts Receipt/collectio P25 (amount in P25
    the n rupees)
    table
    in PP’s
    note
    1&2 P11 – 6,212 05.03.2007 26,005 06.03.2007
    P12 – 7,306 &
    16,624
    3 P18 – 5,107 01.03.2007 55,595 02.03.2007
    &
    15,797
    4 P28 series – 11.04.2007 21,038 12.04.2007
    20,267 &
    16,153
    5 P30 series – 14.03.2007 22,354 15.03.2007
    20,267 16,055
    &
    10,976
    6&7 P34 – 3,617 02.03.2007 16,879 03.03.2007
    P34(a) – 2,679 &
    8,213
    8 P38 – 1,838 27.03.2007 30252 28.03.2007
    &
    10,901
    9 & 10 P40 – 1159 29.03.2007 22,474 30.03.2007
    P40(a) – 1,287 &
    9,550
    11, 12 P42 – 67 07.04.2007 11,538 09.04.2007
    & 13 P43 – 76 &
    P44 – 17,490 10,446

    25. Regarding these amounts also, PW14, who

    prepared Ext.P31 audit report has deposed that, during the

    audit, it was found that some amounts collected from

    consumers as per receipts failed to be noted in the personal

    ledger and use of multiple receipt books simultaneously by
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    22

    the accused were found and therefore, he had prepared

    Ext.P31. In Ext.P31, the accused, Sri.A.P. Binoy is shown as

    Cashier from 02.11.1998 to 30.04.2007 i.e. during the period

    of the audit. Based on the audit report as per Ext.P68 ‘Notice

    for remittance of liability amount’ issued by the Executive

    Engineer, the accused was directed to remit Rs.2,46,034/-

    found due from him and it was remitted as per Ext.D5 on

    14.11.2007 as stated in Ext.P66. Even though, the

    prosecution did not adduce evidence to show that the

    collection made by the accused as per Exts.P11, P12, P18,

    P28 series, P30 series, P34, P34(a), P38, P40, P40(a), P42,

    P43 and P44 failed to be remitted and Ext.P25 would show

    some excess remittance, according to the prosecution, the

    same were amounts collected by other cashiers. Exts.P66

    would show that the accused voluntarily got permission to

    remit the balance amount as per the audit report and he

    should not have remitted the same unless he had not

    misappropriated the same.

    26. 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:

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    23

    “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.”

    27. 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:

    “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.”

    28. Analysing the ingredients to attract offence under

    Section 409 of IPC, its applicability is as held by the Apex
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    24

    Court in [(2012) 8 SCC 547 : AIR 2012 SC 3242],

    Sadhupati Nageswara Rao v. State of Andhra

    Pradesh.

    29. 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.

    30. 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
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    25

    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).

    31. 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.

    32. 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
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    26

    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.”

    33. 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,
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    27

    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.”

    34. 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.

    35. For the offence under Section 477A of IPC, what

    has got to be proved is twofold viz., that the person who
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    28

    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”.

    36. 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],
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    29

    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 and the fact that the

    accused subsequently paid over the entire amount is not a

    matter to be considered.

    37. As per Sections 13(1)(c) and (d) of the P.C. Act,

    1988, a public servant is said to come under the offence of

    `criminal misconduct’, if he dishonestly or fraudulently

    misappropriates or otherwise converts for his own use any

    property entrusted to him or under his control as a public

    servant or allows any other person so to do; or if he,– (i) by
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    30

    corrupt or illegal means, obtains for himself or for any other

    person any valuable thing or pecuniary advantage; or (ii) by

    abusing his position as a public servant, obtains for himself

    or for any other person any valuable thing or pecuniary

    advantage; or (iii) while holding office as a public servant,

    obtains for any person any valuable thing or pecuniary

    advantage without any public interest.

    38. In view of the legal position and as discernible

    from the evidence adduced, the contentions raised by the

    learned counsel for the accused that the prosecution failed

    to adduce sufficient evidence to prove the misappropriation

    under the two separate heads found to be not acceptable.

    39. Coming to the challenge against the prosecution

    sanction, the sanction order produced as Ext.P48, supported

    by the evidence of PW18, who had issued the sanction, it is

    discernible that while issuing sanction, PW18 had gone

    through the prosecution records and was satisfied with the

    necessity to prosecute the accused. Therefore, the challenge

    against the prosecution sanction is found to be untenable

    and the same also is set at rest.

    40. On re-appreciation of evidence, this Court is of the
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    31

    firm view that, the ingredients to attract offences punishable

    under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the

    P.C. Act, 1988 and under Sections 409 and 477A of IPC, have

    been proved by the prosecution, without any reasonable

    doubts. Therefore, the finding of the learned Special Judge

    that the accused committed the above offences is only to be

    justified. In consequence thereof, the conviction entered into

    by the learned Special Judge is liable to sustain.

    41. Coming to the sentence, I am of the view that

    some leniency in the matter of sentence can be considered,

    in the interest of justice.

    42. Point Nos.5 and 6:- In the result, this appeal stands

    allowed in part. The conviction imposed by the learned Special

    Judge is confirmed. In the interest of justice, the sentence

    imposed against the accused for the offences punishable

    under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the

    P.C. Act, 1988 and under Sections 409 and 477A of IPC, is

    modified as under:

    i. The accused is sentenced to undergo
    rigorous imprisonment for a period of one
    year and to pay a fine of Rs.50,000/- and in
    default to undergo rigorous imprisonment for
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    three months, for the offence under Section
    13(1)(c)
    read with Section 13(2) of the P.C.
    Act, 1988.

    ii. The accused is sentenced to undergo
    rigorous imprisonment for a period of one
    year and to pay a fine of Rs.50,000/- and in
    default to undergo rigorous imprisonment for
    three months, for the offence under Section
    13(1)(d)
    read with Section 13(2) of the P.C.
    Act, 1988.

    iii. The accused is sentenced to undergo
    rigorous imprisonment for a period of one
    year and to pay a fine of Rs.50,000/- and in
    default to undergo rigorous imprisonment for
    three months, for the offence under Section
    409
    of IPC.

    iv. The accused is also sentenced to
    undergo rigorous imprisonment for a period
    of one year and to pay a fine of Rs.50,000/-

    and in default to undergo rigorous
    imprisonment for three months, for the
    offence under Section 477A of IPC.

    v. The substantive sentence shall run
    concurrently and the default sentence shall
    run separately, after the substantive
    sentence.

    vi. The period of detention undergone
    by the accused in this case will be set off
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    against the substantive sentence of
    imprisonment.

    43. 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

    modified 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 Special Court, forthwith, for information and further

    steps.

    Sd/-

    A. BADHARUDEEN
    SK
    JUDGE



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