1. These Criminal Appeals are preferred against the common judgment dated 10-9-1993 in C.C Nos. 12, 13, 14 & 15 of 1988 passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The same person is the accused in all the above cases and he has preferred all these four Appeals Nos. 580 to 583 of 1993. Crl. Appeal No. 580 of 1993 is directed against the judgment in C.C 15 of 1988, Crl. Appeals Nos. 581 & 582 of 1993 are filed against the judgments in C.C Nos. 13 & 14 of 1988 respectively and Crl. Appeal No. 583 of 1993 is filed against the judgment in C.C 12 of 1988. Crl. Appeal No. 290 of 1994 is filed by the State seeking enhancement of the sentence awarded by the lower Court in all the above four cases.
2. In all the above four cases, the appellant stood trial before the lower Court for the offences punishable under S. 5(2) read with S. 5(1) (c) and (d) of the Prevention of Corruption Act, 1947 and Sections 409, 467, 471 and 477-A of the I.P.C on the basis of the charge-sheets laid by the Deputy Superintendent of Police, Vigilance Headquarters, Unit-II, Thiruvananthapuram. The allegation made against the appellant is that while working as Junior Employment Officer, Town Employment Exchange, Neyyattinkara, he being a public servant, committed financial irregularities during the period from 30-7-1984 to 28-12-1984 misappropriated money entrusted to him for disbursement to the beneficiaries as unemployment allowance to the extent of Rs. 9,200/- by not disbursing the amount to the beneficiaries and converted the same for his own use and falsified the official records by making false entries and as such he has committed the aforesaid offences.
3. After trial, the lower Court found the appellant guilty of the offences punishable under Section 5(2) read with S. 5(1)(c) and (d) of the Prevention of Corruption Act and Ss. 409, 467 and 471 of the I.P.C in all the four cases and convicted and sentenced him to undergo simple imprisonment for two months each for the of fence punishable u/S. 5(2) read with S. 5(1)(c) and (d) of the Prevention of Corruption Act in all the four cases and convicted and sentenced to pay a fine of Rs. 2000/-, Rs. 2600/-, Rs. 2000/- and Rs. 1000/- respectively for the offence punishable u/S. 5(2) r/w Section 5(1)(c) and (d) of the Prevention of Corruption Act in default to undergo simple imprisonment for a period of 15 days each in C.C Nos. 12 to 15 of 1988 respectively and also to undergo simple imprisonment for two months each for the offences punishable u/Ss. 409, 467 and 471 of the I.P.C in all the four cases and directed the substantive sentences to run concurrently in all the cases, by the common judgment dated 10-9-1993.
4. Aggrieved by the finding of guilt, conviction and sentence entered against him the accused has preferred the above appeals, Dissatisfied with the quantum of sentence awarded by the lower Court, the State has preferred Crl. Appeal No. 290 of 1994.
5. The Government of Kerala introduced the unemployment assistance scheme in the year 1982 for the benefit of the persons who passed S.S.L.C Examination and continued to be unemployed for more than three years after the registration of their names in the concerned Employment Exchanges, whose family is having an annual income less than Rs. 4000/- and aged between 18 and 35 years. The monthly allowance is to be distributed to the beneficiaries of each district. The Government Order issued by the Government in this behalf is marked as Ext. P 78 in this case. The applicants seeking unemployment assistance have to produce identity card, S.S.L.C Book and signed receipt which should be verified at the counter and the signature in the application and receipt should tally. The age should also be verified as noted in the S.S.L.C Book. After verification of these particulars it should be noted in the identity card and the S.S.L.C Book that so much amount is paid as unemployment assistance and signed by the concerned clerk. The Unit Officer should verify the signature of the beneficiaries in the voucher and the application and after satisfying himself about the genuineness of the application and the voucher the amount should be paid and he should sign below it. Thereafter, he should give the voucher to the clerk concerned for disbursement of the money and after payment he should verify whether entries have been made in the S.S.L.C Book and the identity card. The Unit Head has to collect the amount required for disbursement from the Accounts Section and he should acknowledge in the receipt register. After the days disbursement the balance, if any, should be returned to the Accounts Section on the same day and necessary entry should be made in the cash book also.
6. According to the prosecution, while the accused was working as Junior Employment Officer during the period 30-7-1984 to 28-12-1984 he was specially detailed for disbursement of unemployment assistance and was put in charge, of Unit-II as per office orders Nos. 11/84 and 20/84 dated 1-12-1984. When PW 13, the Employment Officer who conducted random check, found that the accused committed irregularities in the disbursement of the unemployment assistance in the month of December, 1984. He informed the Director of Employment about the irregularities as per Ext. P 51 letter dated 27-12-1984. PW 13 mentioned the names of 9 beneficiaries in whose names amounts were disbursed and recommended to contact those beneficiaries regarding the matter. As directed by the Director of Employment, PW 13 informed the Director of Vigilance by Ext. P 54 letter dated 11-2-1989 that Rs. 8,600/- was suspected to have misappropriated by using fabricated receipts.
7. PW 15, the Divisional Employment Officer, Thiruvananthapuram, inspected the Town Employment Exchange, Neyyattinkara and he found that in the case of disbursement of unemployment assistance of nine beneficiaries, there was difference in their signatures in the applications and vouchers. He submitted a preliminary report (Ext. P 60) on 16-1-1985. He summoned concerned applicants to appear before him to gather more details. Only two of them (PWs 2 and 8) appeared on 24-1-1985. He recorded their statement and the statements of the staff of the employment office. He filed another report, Ext. P 61, to the Director of Employment, on the basis of those statements stating that unemployment allowance amounting to Rs. 2000/- paid on 12-12-1984 to PWs 2 and 8 as per Exts. P 10 and P 35 vouchers was not received by them and the accused as the unit head of Unit II was responsible for disbursement of the amounts to those persons after identifying them.
8. PW 18, Deputy Director of Employment conducted an enquiry on the basis of Ext. P 7 petition filed by PW 1 stating that he received unemployment allowance for the period October, 1983 and thereafter, he went to Bombay and returned only in April, 1985 as such he was entitled to the arrears from November, 1983 to June, 1985 and though he claimed Rs. 1,000/-, only Rs. 400/- was sanctioned and the balance amount was rejected on the ground that he had already received Rs. 600/- in 1984. PW 18 found that there was difference in the signature in Ext. P 2 application and Ext. P 6 cash receipt for Rs. 600/- and also the house name mentioned in Ext. P 6 from that of the actual house name mentioned by PW 1. He found from enquiry that Rs. 600/- was misappropriated and the accused was responsible for payment of the same. PW 17 Director of Employment and Training sent a report, Ext. P 70 to the Government on 9-7-1985 detailing all these facts. Thereafter he directed the Employment Officer, Neyyattinkara to initiate disciplinary action against the accused. On 9-2-1985, a complaint was filed by PW 17 before the Deputy Superintendent of Police, Vigilance Section. PW 19, the Deputy Superintendent of Police, Vigilance Headquarters, after conducting preliminary enquiry, registered a case in Crime No. 3.HQ/86 alleging offences punishable under Section 5(2) read with S. 5(1)(c) and (d) of the Prevention of Corruption Act and Sections 409, 468 and 477-A of the Indian Penal Code against the accused. Though originally it was alleged that an amount of Rs. 600/- was misappropriated, during the course of investigation, it was revealed that a further amount of Rs. 8600/- is also misappropriated by the accused. After completing investigation, final report was filed before the Enquiry Commissioner and Special Judge, Trivandrum by obtaining the requisite sanction to prosecute from the Director of Employment. Accordingly, PW 23, the Deputy Superintendent of Police laid four charge-sheets against the accused and they were numbered as C.C 12/88, C.C 13/88, C.C 14/88 and C.C 15/88 before the lower Court:
9. In C.C 12/88 the allegation against the accused is that he has misappropriated Rupees 2600/- out of unemployment assistance payable to PWs. 1 to 3. In C.C 13/88, the allegation is that the accused misappropriated Rs. 2600/- out of the unemployment assistance payable to PWs. 4, 5 and 6. In C.C 14/88 the allegation is that the accused misappropriated Rs. 3,000/- out of the unemployment assistance payable to PWs. 7, 8 and CW 4. In C.C 15/88 the allegation is that the accused misappropriated Rs. 1,000/- out of the unemployment assistance payable to PW 9.
10. When the accused appeared before the Court, charges were framed against the accused for offences punishable under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act and Sections 409, 467, 471 and 477A of the I.P.C after preliminary enquiry. Subsequently, joint trial of all these cases was allowed as per order in Crl. M.P No. 275/1991 and evidence was recorded in C.C 12/1988. After trial, the lower Court found the accused guilty of the offences punishable under S. 5(2) read with Section 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act and Sections 409, 467., 471 and 477-A of the I.P.C and convicted and sentenced the accused as aforesaid as per the impugned common judgment.
11. The accused has preferred Crl. Appeals Nos. 580, 581, 582 and 583 of 1993 challenging the finding of guilt and conviction of sentence entered by the trial Court. The State has preferred Crl. Appeal 290 of 1994 seeking enhancement of the sentence dissatisfied with the sentence awarded by the trial Court.
12. For the sake of convenience, while discussing in this judgment, the accused before the lower Court who is the appellant in Crl. A. 580 to 583 of 1993 and respondent in Crl. A. 290 of 1994 will be referred to as appellant and the State which is the respondent in Crl. A. 580 to 583 of 1993 and the appellant in Crl. A. 290/1994 will be referred to as the respondent.
13. Counsel for the appellant submitted that the appellant has not committed any misappropriation of amount. Though he has got unblemished service for more than 25 years, he has been falsely implicated in this case at the instance of some of his superiors who are inimically disposed with him. He has honestly disbursed the unemployment assistance entrusted with him to the beneficiaries. According to him, the beneficiaries who have deposed in these cases were employed during the relevant time and they have claimed the unemployment benefit concealing the employment. Therefore, PWs. 1 to 8 who have been examined in this case have deposed denying the signatures in the vouchers issued by them for receipt of the unemployment assistance to protect their own interest. According to him, the lower Court without properly analysing the evidence on record, arrived at the conclusion that the appellant is guilty of the offences of misappropriation and punishable under the Prevention of Corruption Act in this case.
14. Counsel for the appellant argued that the charge sheets, Exts. P 81 to P 84 filed in the above four cases is illegal since the offences alleged therein are in respect of the violation of Ext. P. 78 Executive Order dated 12-11-1982 and Exts. 44(a) to (d) Office Orders regarding the unemployment and self employment scheme formulated and implemented by the Government of Kerala. According to him, Ext. P. 78 lays down only the guidelines to the internal machinery provided for implementation of the scheme. He also argued that though Rule 6 in the scheme provides a right of appeal none has preferred any appeal in these cases. He further submitted that though Rule 20 stipulates penalty for making false claims, such contention is raised against nobody in this case. He also argued that those rules do not provide for any penal action against the persons involved in disbursement of unemployment assistance to the beneficiaries. Therefore, according to him, even according to the prosecution since no offence as defined under Section 3(n) of the Cr. P.C is committed by the appellant, no prosecution is sustainable against the appellant on the basis of the executive directions which does not have the force of law. He strenuously argued that since Ext. P 78 executive order is not the law in force as provided under Article 13(3)(a) of the Constitution and it being a mere executive order, the violation of which does not constitute an offence punishable under the I.P.C or any other Act as contemplated under Section 3(n) of the Cr. P.C and Section 3(38) of the General Clauses Act, the very prosecution initiated and launched against the appellant is null and void. According to him, the allegation made against the appellant will at the best constitute grounds for taking disciplinary action against him and not for any penal action. In support of this argument, counsel for the appellant relied upon various decisions including Edward Mills Co. Ltd., Bewar v. State of Ajmeer, AIR 1955 SC 25, Dwarakanath Tewari v. State of Bihar, AIR 1959 SC 249, Kharak Singh v. State of U.P, AIR 1963 SC 1925 : (1963 (2) Cri LJ 329), Shiveshwar Prasad Narain Singh v. Braj Kishore Singh, (1978) 2 Rent CR 419 : (AIR 1978 NOC 310) (Patna), Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 : AIR 1987 SC 748 and Subh Ram v. Gram Panchayat, Dhani Phogat, 1986 Cri LJ 2027 : (AIR 1986 Punj & Har 357) (FB). Though the above rulings relied upon by counsel for the appellant established that in order to make an executive order law of the land statutory backing is necessary and violation of executive orders and departmental instructions will not constitute the offence punishable under the I.P.C or the provisions of any other Act, those decisions are not helpful to the appellant in these cases.
15. It is clear from Exts. P 81 to P 84 charge sheets filed in these cases that while narrating the offences alleged against the appellant, though reference is made to the violation of the executive orders, Ext. P 78 and Exts. P 44(a) to (d) the offence alleged against the appellant in these cases are clearly described in those charge sheets as offences punishable under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act and Sections 409, 467, 471 and 477-A of the Indian Penal Code which are statutory offences of forgery, fabrication of accounts and misappropriation of amount and no prosecution is launched against the appellant for violation of the scheme for the disbursement of the unemployment assistance as per Ext. P 78 executive order. Therefore, this contention of the appellant that the very prosecution launched against him is illegal, is not sustainable.
16. Counsel for the appellant vehemently argued that the evidence of PWs. 1 to 8 in these cases to the effect that the entire unemployment assistance was not disbursed by the appellant to the beneficiaries and the appellant misappropriated portions of the unemployment assistance due to the beneficiaries is absolutely unbelievable as they were employed during the relevant period for which they claimed unemployment assistance and they have committed offences punishable under the Indian Penal Code. He also argued that they have deliberately deposed before the lower Court that they have not signed the vouchers and they have not received the amount from the appellant in order to protect their own interest. According to him, the lower Court ought to have sent the admitted signatures and the disputed signatures of PWs. 1 to 9 for comparison by the handwriting expert to come to the conclusion whether the signatures of those witnesses found in the vouchers and other documents are not put by them as alleged by the prosecution. Counsel vehemently submitted that the comparison of the signatures by the lower court itself to come to a conclusion as to whether they are genuine or not is very hazardous and unjustifiable in these cases.
17. In support of the contention that the comparison of the signatures by the Court is very risky and hazardous and the same cannot be resorted to and accepted and the Court ought to have sent the disputed and admitted signatures and writings to handwriting expert in order to arrive at a definite conclusion, counsel for the appellant relied upon various decisions. In the decision reported in Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277, the Privy Council has held that mere comparison of admitted signatures without expert advice or microscopic examination is dangerous. In the decision reported in Fakhruddin v. State of M.P, AIR 1967 SC 1326 : (1967 Cri LJ 1197) the Supreme Court held that under Sections 45 and 47 of the Evidence Act, the evidence is an opinion. In both cases the Court must satisfy itself by such means as are open that the opinion may be acted upon and in case where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. In the decision reported in State (Delhi Administration) v. Pali Ram., (1979) 2 SCC 158 : AIR 1979 SC 14 : (1978 Cri LJ 17) the Supreme Court held that the handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the hand writings with its own eyes for a proper assessment of the value of the total evidence. In that judgment the Apex Court has observed as follows (Para 29):
“Although there is no legal bar to the using his own eyes to compare the disputed writing with the admitted writing even without the aid of the evidence of any handwriting expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which form the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a judge, should take upon himself the task of comparing the admitted writings with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”
18. In the decision reported in R. v. Ewing (1983) 2 All ER 645 it is held that in a criminal trial, where handwriting is to be used for comparison under Section 8, it should be proved to the satisfaction of the judge to be genuine, and the standard of proof should be the ordinary criminal standard, namely proof beyond reasonable doubt. In the decision reported in Bharathan v. Sudhakaran, (1996) 1 Ker LT 466 : ((1996) 2 SCC 704 : AIR 1996 SC 1140). The Supreme Court observed as follows (at p. 1145 of AIR):
“The learned Judge in our view was not right either in brushing aside the principals laid down by this Court in (1979) 2 SCC 158 : AIR 1979 SC 14 : (1979 Cri LJ 17) (supra) on the ground that it was not a criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained persons whose services could have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered.”
19. In the decision reported in Ajit Savant Majagvai v. State Of Karnataka (1997) 7 SCC 110 : (1997 Cri LJ 3964) the Supreme Court has observed as follows (at p. 3971 of Cri LJ):
“38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. (See: State (Delhi Administration) v. Pali Ram., (1979 Cri LJ 17) (SC)”.
20. In that case, the Supreme Court itself compared the signatures of the accused and endorsed the finding of similarity of the signatures by the trial Court.
21. Though all the above decisions laid down that it is not safe for the Court to rely upon the comparison of disputed signature and handwriting by itself alone to enter a finding regarding the genuineness or otherwise of the disputed signatures, they have upheld the power of the Court to compare the disputed signatures and handwritings with admitted signatures and writings under Section 73 of the Evidence Act.
22. In these cases the lower court, apart from comparing disputed signatures found in the vouchers and other documents with the admitted signatures and handwritings available on record, has relied upon the evidence of PWs. 10 to 14 apart from the evidence of PWs. 1 to 9 examined in these cases. As already noted, PWs. 1 to 9 are beneficiaries in the scheme who have deposed that portion of the unemployment assistance claimed by them is not paid to them and vouchers alleged to have been executed by them for those payments are forged.
23. Counsel for the appellant submitted that there is wide dissimilarity in the signatures of PWs. 1 to 8 found in the documents produced in these cases. He also submitted that it is in the interest of the beneficiaries to deny their signatures found in the vouchers produced by them for payment of the unemployment assistance, since they have admitted that they were employed at least during a portion of the period for which they have claimed unemployment assistance. Therefore, according to him, in the interests of justice, their admitted signatures and disputed signatures along with the writings of the accused should have been sent for comparison to the handwriting expert to arrive at a just conclusion in these cases. It is true that there is wide dissimilarity in the signatures of PWs. 1 to 9 in the various documents produced and marked in these cases as having signed by them. But that fact does not make it absolutely essential to send the disputed signatures for comparison with the admitted signatures to the handwriting expert. In these cases, the prosecution mainly relies upon the evidence of PWs. 10 to 14 besides PWs. 1 to 9 to bring home the guilt of the appellant. PW 10 was the L.D Clerk who assisted the appellant, Junior Employment Officer, responsible to disburse the unemployment assistance to the beneficiaries, during the relevant time. He has deposed that the entries made with date in Exts. P 6, P 30 and other vouchers with regard to the payment are in the handwritings of the accused. PW 11 is another L.D Clerk who worked along with the appellant in the same unit for disbursement of unemployment assistance during the relevant period. He has also deposed that the writings and signatures in the disputed vouchers and other documents are in the handwritings of the appellant. PW 11 has deposed that the appellant used to entrust the vouchers to him stating that they are for the payments made by him. PW 12 who was the U.D Clerk in the office working along with the appellant during the relevant time has deposed that the accused had endorsed the payment of Rs. 600/- with date in Ext. P 6 voucher. She has also deposed that there is difference in the signatures in Ext. P 6 and the application filed by PW 1. She has also deposed that Ext. P 6 is written and signed by the appellant. She has further deposed that the vouchers and receipts do not contain the initials of the concerned clerk. PW 13 has deposed that he was working as Town Employment Officer in the same office along with the appellant and he had verified Exts. P 6, P 10, 16, 19, 26, 30, 35, 42, 46 and 48 receipts and found dissimilarity in the signatures. PW 14 had deposed that the appellant used to receive the amount from him and return the balance amount and the vouchers which tallied. PWs. 10 to 12 who are the L.D clerk and U.D Clerks working along with the appellant during the relevant period have deposed in similar lines implicating the appellant in this case. PW 11 has deposed that the appellant used to give vouchers to him stating that he has paid the amount to the beneficiaries. It is also pertinent to note that PWs. 1 to 9 were not effectively cross examined regarding their denial of signatures in the vouchers. Therefore, it is clear from the evidence on record that there is sufficient material over and above the comparison of the signatures in the disputed and admitted documents in these cases to come to a proper and just finding as to whether the vouchers alleged to have been issued by PWs. 1 to 9 in these cases are genuine and in fact issued by them or not or whether they are forged by the appellant. Hence, the contention of the appellant that the failure to send the disputed signatures and writings to the handwriting experts for expert opinion is fatal and the lower Court is not at all justified in entering a finding by comparing the signatures and the writings by itself is not sustainable. On the other hand, the comparison of the disputed and admitted signatures and writings as well as the evidence of PWs. 10 to 14, the colleagues of the appellant who worked during the relevant period along with the evidence of PWs. 1 to 9 clearly established in these cases that the disputed signatures in the vouchers and writings are forged by the accused.
24. Counsel for the appellant submitted that the lower Court has not specifically put the questions to the appellant when he was questioned under Section 313 of the Cr. P.C regarding the circumstances brought out in evidence regarding the offence falling within the statutory provisions and the executive order alleged in the charge sheet. In support of this argument counsel for the appellant relied upon the decision reported in Parichaat v. State of M.P, (1972) 4 SCC 694 : AIR 1972 SC 535 : (1972 Cri LJ 322) and State Of Kerala v. Rajappan Nair, (1987) 1 Ker LT 584 : (1987 Cri LJ 1257). In the decision reported in (1972) 4 SCC 694 : AIR 1972 SC 535 : (1972 Cri LJ 322) (supra) the Supreme Court has observed (Para 18):
“The real importance of Section 342 of the Criminal Procedure Code is that there is a duty cast upon the Courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet, and thereby an opportunity is given to the accused to explain any such point.”
25. In the decision reported in State of Kerala v. Rajappan, (1987) 1 Ker LT 584 : (1987 Cri LJ 1257) a single Judge of this Court has observed (at p. 1260 of Cri LJ):
“Though the questioning under Section 313(1)(a) is discretionary, the questioning under S. 313(1)(b) is mandatory. The object is to afford an opportunity to the accused to personally explain any circumstance appearing in the evidence against him. When the particular evidence or circumstance is not put to the accused the effect is that he is denied an opportunity to offer his own explanation in that matter. That denial in turn deprives the Magistrate of the benefit of his explanation and evaluating the evidence and circumstances in the light of the explanation personally given by the accused. Sometimes accused may be able to give acceptable explanation which is personally known to him alone. The explanation may sometimes effectively erase the incriminating aspect of the evidence or circumstances or may have a bearing on the question of sentence. Any how all circumstances appearing in the evidence against the accused, whether they are major or minor, having any bearing in connecting him with the crime will have definitely to be put to him and his explanation recorded and the same considered. They must be put in the form of simple understandable questions. Those circumstances appearing in the evidence against the accused and not put to him affording an opportunity to explain cannot at all be considered as evidence to decide his criminality.”
26. In this case I have already found that the offence alleged against the appellant are in respect of statutory offences punishable under the Indian Penal Code and Prevention of Corruption Act and no offence is alleged against the petitioner for violation of the executive orders regarding unemployment and self employment scheme evidenced by Ext. P 78 or the office orders Exts. P 44(a) to (d). Therefore, no question of putting separate questions regarding the circumstances brought out in evidence regarding the offence coming within the executive order and the statutory provisions arises in these cases. Moreover, the errors and omissions in complying with the provisions of Section 313 of the Cr. P.C are only curable irregularities. The question to be considered is whether the trial is vitiated due to the failure of the Court putting the circum stances to the accused. In the decision in Makan v. State of Gujarat, (1971) 3 SCC 297 : AIR 1971 SC 1797 : (1971 Cri LJ 1310), the Supreme Court has observed (Para 16):
“It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trial. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused.”
27. The appellant has no case that by the omission of the Court to put questions separately with regard to the violation of executive order and the provisions of the I.P.C and the Prevention of Corruption Act any prejudice is caused to him in moulding the defence apart from the arguments advanced by counsel for the appellant before this Court. Hence, in view of the fact that the charge framed is not for violation of the executive order, but on the provisions of statute, and no contention regarding prejudice caused to the appellant is raised before the trial Court for not putting the entire circumstances brought out in evidence against him, this contention raised by the appellant is of no force.
28. It is argued by counsel for the appellant that in criminal cases the burden is upon the prosecution to prove the guilt of the accused beyond reasonable doubt, and it is not at all legal or proper to find the accused guilty on the basis that the accused has admitted that money was entrusted to him and the beneficiaries contended that the entire amount due to them is not paid by the accused. But the case of the prosecution is that since the appellant had admitted the entrustment of the amount and set up a specific defence that he has paid the amount entrusted with him to the beneficiaries, the burden is upon the appellant to prove that he has, in fact, paid the amount to the beneficiaries since the beneficiaries have denied receipt of the amount from the appellant.
29. When questioned under Section 313 of the Cr. P.C, the appellant has admitted that he has received the amount from the Accounts Section for disbursement of unemployment benefit to the beneficiaries. Therefore, the Public Prosecutor submitted that the appellant is bound to prove that he has disbursed the amount to the beneficiaries as contended by him. In support of this contention the Public Prosecutor relied upon several decisions. In the decision reported in Sawal Das v. State Of Bihar , (1974) 4 SCC 193 : AIR 1974 SC 778 : (1974 Cri LJ 664) the Supreme Court has observed as follows:—
“9. Learned counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106, Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab, (AIR 1956 SC 460 : 1956 Cri LJ 827) that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish to guilt of an accused beyond reasonable doubt.” In the decision reported in Inder Sain Jain v. State Of Punjab, AIR 1994 SC 1065 : (1994 Cri LJ 1224) the Supreme Court observed as follows: “8. For the purpose of the criminal case, what the facts establish is that the appellant was entrusted with the receipts and that the amounts. received from the dealers had to be credited and if they are not properly accounted for, then responsibility squarely was on him. To that extent, the prosecution, in the instant case, has established the entrustment as well as making false accounts. As to what happened between him and the Firm would not absolve him from the liability.”
30. In the decision reported in Bagga Singh v. State Of Punjab, 1996 AIR SCW 2582 : (1996 Cri LJ 2883), the Supreme Court has observed as follows:
“4. It appears to us that the prosecution was successful in proving the charge against the appellant. The entrustment as such is not denied by the appellant. It was for him to discharge the onus that he had discharged the trust as was expected of him. By merely taking the plea that he had passed on the sum to the cashier, the trust cannot be said to have been discharged and could only be done if either the cashier would admit receipt or the appellant had reasonably established that there had been a practice to pass on such money without receipt. No departmental man, least of all the accountant, has come forward to support the existence of such practice. The appellant cannot be permitted to say that whatever he had said in his statement under S. 313, Cr. P.C is the gospel truth. The argument of the appellant that the cashier was wrongly acquitted may be plausible, but in the facts and circumstances that fact alone can be of no help to the appellant.”
31. Counsel for the appellant vehemently submitted that the principles enunciated in the above decisions are not judicially sound and good law as it is well established that in criminal cases the burden is on the prosecution to establish the guilt of the accused unless the burden is cast upon the accused by the provisions of any special statute. In this case the offences alleged against the appellant are punishable, under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act and Sections 409, 467, 471 and 477-A of the Indian Penal Code. Under Section 4 of the Prevention of Corruption Act, 1947, the burden is cast upon the accused in certain cases. Though the offences punishable under Section 5(1)(a) and (b) are included in Section 4(1) of the Act, the offences punishable under Section 5(1)(c) and (d) of the Act alleged against the appellant are not included in Section 4 of the Act. Therefore, Section 4 of the Prevention of Corruption Act, casting burden upon the accused is not applicable in this case.
32. In the decision reported in V.D Jhingan v. State Of Uttar Pradesh, AIR 1966 SC 1762 : (1996 Cri LJ 1357) the Supreme Court observed as follows (Para 4):
“We are accordingly of the opinion that the burden of proof lying upon the accused under S. 4(1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him.”
33. In the decision reported in S.L Goswami v. State of M.P, (1972) 3 SCC 22 : AIR 1972 SC 716 : (1972 Cri LJ 511) the Supreme Court has observed as follows (Para 5):
“In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt.”
34. In the decision reported in R.K Dey v. State of Orissa, (1976) 4 SCC 233 : AIR 1977 SC 170 : (1977 Cri LJ 173) the Supreme Court has observed as follows (Para 6)
“In our opinion three cardinal principles of criminal jurisprudence are well settled, namely:
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
(3) that the onus of the prosecution never shifts.
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In other words, the mode of proof, by standard of benefit of doubt is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court.”
35. In the decision reported in Trilok Chand v. State of Delhi, (1975) 4 SCC 761 : AIR 1977 SC 666 : (1977 Cri LJ 254) the Supreme Court observed as follows (Para 8)
“But the degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the more plausibility of an explanation given by the accused in his examination under Section 342, Cr. P.C may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond a reasonable doubt — see Mahesh Prasad Gupta v. State of Rajasthan, (1974) 3 SCC 591 : AIR 1974 SC 773 : (1974 Cri LJ 509).”
36. In the decision reported in State of Maharashtra v. Wasudeo Ramachandra, (1981) 3 SCC 199 : AIR 1981 SC 1186 : (1981 Cri LJ 884), the Supreme Court has observed as follows (Para 13):
“The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability.”
37. It is clear from all the above decisions that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and even in the strict liability cases wherein the burden is shifted to the accused, the accused can discharge his burden by preponderance of probability and no burden is cast upon him to prove his contention beyond reasonable doubt. But the contention of the appellant that in view of the dictum laid down by the Supreme Court in the above judgments and similar other judgments, the rulings relied upon by the Public Prosecutor referred to above that when the accused sets up a defence within his special knowledge or admits the en-trustment, it is up to him to discharge the onus that he had discharged the trust as was expected of him is not good law cannot be sustained. Those decisions relied upon by the Public Prosecutor only lay down that in such contingencies the accused has to prove his contention by preponderance of probability as in other cases wherein onus is upon the accused to prove his contention. Therefore, the decisions relied upon by the Public Prosecutor as well as counsel for the appellant referred to above laid down the very same principles that in cases the burden is upon the accused to prove his case, he has to discharge the burden by preponderance of probability.
38. Counsel for the appellant submitted that in the above cases the prosecution is relying entirely upon circumstantial evidence and in such cases the burden is heavy upon the prosecution to establish all circumstances pointing to the guilt of the accused and the accused alone, without a missing link, and in case of a single link missing in the chain of events, the accused is entitled to acquittal. In support of this contention, counsel for the appellant relied upon several decisions. In the decision reported in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : AIR 1984 SC 1622 : (1984 Cri LJ 1738) the Supreme Court has laid down that the following conditions must be fulfilled before a case against an accused can be said, to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
39. In the decision reported in Joy v. C.I of Police (1989) 1 Ker LT 443 : (1990 Cri LJ NOC 124) a Division Bench of this Court has observed as follows:
“5. Before convicting an accused on the basis of circumstantial evidence, it is necessary to ensure that the chain of circumstantial evidence is complete and conclusive without even a missing link. The effect of all the links separately and of the chain cumulatively should lead only to the guilt and not in any way to the innocence. No circumstance should be capable of any explanation on any hypothesis other than the guilt. In such cases, guilt being an inference from proved circumstances, there should not be anything consistent with the innocence and the inference of guilt must be conclusive. Moral conviction however strong cannot be accepted as a substitute for legal evidence.”
40. In the decision reported in Ajit Savant Majagvai v. State Of Karnataka (1997) 7 SCC 110 : (1997 Cri LJ 3964) the Supreme Court has observed as follows (at p. 3968 of Cri LJ):
“19. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See: Hukam Singh v. State Of Rajasthan, ((1977) 2 SCC 99 : AIR 1977 SC 1063 : 1977 Cri LJ 639), Eradu v. State of Hyderabad, (AIR 1956 SC 316 : 1956 Cri LJ 559), Earabhadrappa Alias Krishnappa v. State Of Karnataka, ((1983) 2 SCC 330 : AIR 1983 SC 446 : 1983 Cri LJ 846), State of U.P v. Sukhbasi, (1985 Supp SCC 79 : AIR 1985 SC 1224 : 1985 Cri LJ 1479), Balwinder Singh Alias Dalbir Singh v. State Of Punjab., (1987) 1 SCC 1 : AIR 1987 SC 350 : (1987 Cri LJ 330), Ashok Kumar Chatterjee v. State Of M.P., (1989 Supp (1) SCC 560 : AIR 1989 SC 1890 : 1989 Cri LJ 2124).
20. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to the closely connected with the principal facts sought to be inferred from those circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.”
41. In the decision reported in Jaharlal Das v. State Of Orissa., (1991) 3 SCC 27 : AIR 1991 SC 1388 : (1991 Cri LJ 1809), the Apex Court has sounded caution to be borne in mind in evaluating evidence in cases depending upon the circumstantial evidence by the following observations:
“9. It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that a conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the reasoning of the Courts below in coming to the conclusion that the accused alone has committed the offence.”
42. The dictum laid down by the Supreme Court in the above decisions are undisputable. The question to be considered in this case is whether the evidence on record established the guilt of the appellant in this case by applying the principles laid down in those decisions. The fact that PWs. 1 to 9 were the beneficiaries entitled to unemployment assistance as per Ext. P 78 Government order is not disputed. PWs. 1 to 9 have deposed that they did not receive money as per the disputed vouchers, Exts. P 6, P 10, P 16, P 19, P 26, P 30, P 35, P 42 and P 48 from the Town Employment Exchange, Neyyattinkara on the dates mentioned therein. The alleged payments asper Exts.P 6, P 10, P 16, P 19, P 30, P 35, P 42 and P 48 disputed vouchers have been accounted in Ext. P 15 subsidiary cash register. All those vouchers bear the signatures of the appellant. PW 10 has deposed that he has scrutinised the S.S.L.C books and identity cards of all the beneficiaries on the dates mentioned in those vouchers and no endorsement has been made on them by him for making payment of the amounts stated in those vouchers. The identity cards were not scrutinised by the appellant with reference to the application and the S.S.L.C book and the beneficiaries did not receive the amounts as per the vouchers. The contention of the appellant that PWs. 1 to 9 the beneficiaries were deliberately denying their signatures in the vouchers and receipt of the amount mentioned in the vouchers to save their own interest, since they were employed during the relevant period, disentitling them from receiving unemployment assistance, is negatived by the trial Court as well as this Court as stated in the preceding paragraphs of this judgment. Therefore, it is within the knowledge of the appellant as to whether he forged the signatures of the beneficiaries in those vouchers, or it was done by somebody else and the prosecution had no burden to prove that fact.
43. The evidence of PWs. 10 and 11 established that while they were working as L.D Clerk in the office of the appellant were detailed to assist the appellant in disbursement of the unemployment assistance to the beneficiaries during the relevant period. Ext. P 7 receipt register established that the money for disbursement to the beneficiaries drawn from the treasury was received by the appellant, which established beyond reasonable doubt that there is entrustment of money with the appellant. The fact that there is no corresponding entry in the identity card is explained by PWs. 10 and 11 stating that it was omitted to be noted in the identity cards due to pressure of work since about 250 beneficiaries appeared for the receipt of unemployment assistance every day in the unit headed by the appellant. Though it is contended by the appellant that PWs. 1 to 9 are not truthful witnesses, the lower Court has found that their evidence regarding non-payment of the amounts evidenced by the aforesaid vouchers is believable. On going through their evidence, 1 also find that the evidence of PWs. 1 to 9 with regard to non-payment of the amounts evidenced by those vouchers is trustworthy. PW 11 has deposed that the appellant had entrusted the vouchers to him stating that he has made payments to the persons mentioned in those vouchers and PW 11 has not verified nor made any necessary endorsement on the S.S.L.C book or identity cards in respect of the persons mentioned in those vouchers also established the prosecution case that the appellant has forged those vouchers. Nothing is brought out in evidence to suspect the evidence of PW 11 in this regard. The contention of the appellant with regard to non-sending the signatures in disputed vouchers for comparison to the handwriting expert is also negatived by me. Under the circumstances, from the evidence on record, it is clear that the prosecution has satisfactorily established that the appellant has committed the offence alleged against him beyond reasonable doubt. Therefore, the arguments advanced by counsel for the appellant that there are strong missing links in this case such as nobody has deposed that the appellant has taken the money and that the disputed signatures are not proved by expert evidence is of no force. When the entrust-ment of money to the appellant is proved, it is up to him to establish by preponderance of probability that he has discharged his duty to disburse the amount as was expected of him being the trustee of the amount. Therefore the contention that important links in the chain of events are missing in this case, which entitled the appellant the benefit of doubt is absolutely unsustainable. Therefore, the finding of guilt, conviction and sentence entered by the lower Court against the appellant has to be confirmed in these appeals.
44. The State has preferred Crl. A. 290/1994 praying to enhance the sentence awarded by the lower Court against the appellant in this case. Counsel for the appellant submitted that since the appellant stood trial in four different cases and he has been separately found guilty, convicted and sentenced by the trial Court in all four cases separately if in fact, the State was dissatisfied with the sentence awarded by the trial Court is ought to have filed separate appeals in each case as it is done by the appellant challenging the finding of guilt, conviction and sentence entered against him by preferring four separate appeals. But the Public Prosecutor submitted that if it is found that the sentence awarded by the trial Court is not commensurate with the offence committed by the accused, this Court can take suo motu revision against the accused and enhance the sentence. But it is pertinent to note that this Court did not find it necessary to take suo motu revision in these cases regarding the quantum of the sentence awarded by the trial Court and to enhance the sentence against the appellant. Therefore, the State ought to have filed separate appeals in all the four cases seeking enhancement of sentence and, by filing an appeal against the sentence awarded in one of the cases, the State cannot contended that the sentence awarded in all the four cases should be enhanced. Therefore, in Crl. A. 290/94, this Court can consider the enhancement of sentence in only one of the four cases involved in these appeals.
45. The Public Prosecutor strenuously argued before me that the lower Court has found that the appellant has committed very serious offences warranting deterrent sentence and the Court observed that the appellant, by abusing his official position, obtained pecuniary advantage to himself by illegal means and that criminal misconduct by a public servant is certainly serious offence. However, the lower Court, instead of imposing a deterrent punishment awarded not even the minimum sentence provided under law to the appellant in these cases. It is submitted that the learned Special Judge has awarded the unduly lenient sentence to the appellant in these cases on the basis of his misplaced sympathy towards the appellant. In support of the contention that in a very serious offence of this nature affecting administrative machinery, deterrent sentence should have been awarded, the Public Prosecutor relies upon the decision reported in State Of Karnataka; v. Surender Kotiankar., (1984) 4 SCC 370 : AIR 1984 SC 1586 : (1984 Cri LJ 1727) wherein the Supreme Court has observed as follows:
“We are prima facie satisfied that the sentences are inadequate and that the lenient sentences are the result of misplaced sympathy.”
46. In that case the Supreme Court, though made the above observation, did not interfere with the sentence by invoking the jurisdiction under Article 136 of the Constitution of India. Even though it would appear that the sentence awarded by the lower Court is inadequate in these cases, considering the gravity of the offences committed by the appellant and its impact upon the public servants and the public at large and had this Court tried these cases much deterrent sentence would have been awarded by considering the fact that the allegation made against the appellant is that he committed misappropriation and falsification of accounts etc. during the period from 30-7-1984 to 28-12-1984 and he has been standing ordeal of trial before the Court from the year 1988 onwards and he also retired from service, I find it will not be just or proper to interfere with the sentencing discretion exercised by the trial Court and enhance the sentence at this distant point of time. Therefore, the sentence awarded by the lower Court against the appellant on different counts is also confirmed.
47. On the basis of what is stated above, it is clear that all the above appeals preferred against the finding of guilt, conviction and sentence entered by the lower Court against the appellant are of no merit. Hence, the finding of guilt, conviction and sentence entered by the lower Court are confirmed and these appeals are dismissed.
48. Appeals dismissed.
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