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
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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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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26or 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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27electronic 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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29Harman 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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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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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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32three 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