L.RAVINATHAN v. STATE OF KERALA

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"C.R."

J U D G M E N T

Dated this the 26^thday of June, 2023 This appeal has been preferred by the accused in C.C.No.47/2008 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short 'the court below') challenging the judgment dated 30.9.2011, convicting and sentencing him under Sections 13 (1)(c) and (d) read with 13(2) of the Prevention of Corruption Act (fort short 'the PC Act') and Section 409 of the Indian Penal Code (for short 'the IPC').

2. The prosecution case in short is that the accused while working as Junior Superintendent/Chief Ministerial Officer at Munsiff's Court, Nedumangad during the period from 4.9.2001 to 8.6.2006, dishonestly misappropriated a sum of ₹2,20,000/- involved in O.S.No.335/2005 of the Munsiff's Court, Nedumangad, kept in the safe custody of the court and thereby committed the offence.

3. After trial, the Court below found the accused guilty and convicted and sentenced him to undergo rigorous imprisonment for one year each and to pay a fine of ₹3,000/- each, in default to suffer rigorous imprisonment for three months

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each under Section 13(2) read with 13(1)(c) and 13(2) read with 13(1)(d) of the PC Act, to undergo rigorous imprisonment for one year and to pay a fine of ₹1,000/-, in default to suffer rigorous imprisonment for two months under Section 409 of the IPC vide the impugned judgment. Challenging the said conviction and sentence, the accused has preferred this appeal.

4. During the pendency of the appeal, the accused/original appellant died, and his wife has been impleaded as an additional appellant.

5. I have heard Sri. K.K. Dheerendrakrishnan, the learned counsel for the appellant and Sri. A. Rajesh, the learned Special Public Prosecutor for VACB.

6. The learned counsel for the appellant impeached the finding of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there is no satisfactory evidence to prove the entrustment of ₹2,20,000/- with the accused and its misappropriation by him. The learned counsel further submitted that the ingredients of the offence punishable under Section 409 of the IPC and Sections 13 (1)(c) and (d) of the PC Act had not been established. The counsel also submitted that the sanction for prosecution had not been proved in accordance with the law. On the other hand, the

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learned Special Public Prosecutor supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

7. It is not disputed that the accused worked as Chief Ministerial Officer (CMO) at the Munsiff's Court, Nedumangad, during the period in question. It is also not in dispute that the accused was transferred to the Sub Court, Neyyattinkara, and he was relieved of his duty from the Munsiff's Court, Nedumangad, in the forenoon of 8.6.2006 and that PW1 took charge as CMO at the Munsiff's Court, Nedumangad from the accused on 8.6.2006. The evidence on record would show, and it has been more or less admitted by the accused, that while he was relieved of his duty from the Munsiff's Court, Nedumangad, on 8.6.2006, he did not hand over the charge of the valuables kept in the safe to PW1. The evidence would further show that he handed over some valuables on 19.6.2006 and the remaining valuables on 27.7.2006. The dispute is with respect to the handing over of ₹2,20,000/- involved in O.S.No.335/2005.

8. The evidence of PW1, the CMO, coupled with Exts. P7 and P8 would prove that the accused had received items 1 and 3 to 29 involved in O.S.No.335/2005 produced by the Advocate Commissioner in that suit on 27.6.2005. Item No.1 in Ext.P7 is

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₹2,20,000/-. The receipt of the said item by the accused on 27.6.2005 is admitted by the defence and proved by Ext.P4(g), the letter written given by the accused to the Munsiff (PW7). Exts. D1 and D1(a) endorsement on Ext.P7 show that PW7 made an order to keep the valuables mentioned in Ext.P7 in safe custody. The evidence of PW1 shows that the accused had kept the safe key in which the valuables were kept. PW7, the Munsiff, categorically deposed that the CMO of the court is responsible for the safe custody of the valuables kept in the safe. That apart, the defence did not dispute that items Nos.1 and 3 to 29 involved in O.S.No.335/2005, including the amount of ₹2,20,000/- were received by the accused and kept in safe custody and the keys of the safe were in his possession. It is pertinent to note that the accused admitted that even though he was relieved of his duty on 8.6.2006, he handed over the chest's key to his successor, PW1, only on 19.6.2009. According to him, due to the pressure of work at the Sub Court, Neyyattinkara, where he was transferred and also due to the treatment of his disease, he could not hand over the charge of the amount of ₹2,20,000/- involved in O.S.No.335/2005 which was kept in the safe in time. Thus, the prosecution has succeeded in proving that the domain over ₹2,20,000/- was entrusted to the accused on 27.6.2005.

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According to the prosecution, when the accused was relieved of his duty on 8.6.2006, he did not hand over the said sum of ₹2,20,000/- to his successor, PW1. On the other hand, he brought the said amount on 27.7.2006 and handed it over to PW1. In the intervening period, the money was kept in his possession, alleged the prosecution. However, the accused took up a defence that the aforesaid amount of ₹2,20,000/- was kept in the safe itself during the period between 8.6.2006 to 27.7.2006 and that on 27.7.2006, he took the amount from the safe and handed it over to PW1 and hence the question of misappropriation does not arise at all. Thus the crucial question is whether the aforesaid amount of ₹2,20,000/- was in the safe during the period from 8.6.2006 to 27.7.2006.

9. The evidence on record would show that after the accused was relieved of his duty from the Munsiff's Court, Nedumangad, in the forenoon of 8.6.2006 without handing over the charge of the valuables, several notices were issued to him by the court to hand over the charge of valuables. However, he sought time for the same on several occasions. He went to the office of the Munsiff's Court, Nedumangad on 19.6.2005 and handed over the charge of some of the valuables and ultimately, on 27.7.2006, handed over the remaining valuables, including

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₹2,20,000/-. The evidence of PW1 and PW7 clearly proves that the accused produced an amount of ₹2,20,000/- before PW7 on 27.7.2006, and it was received by PW1 from the accused on the instruction of PW7 on the same day. Their evidence further proves that when the amount was brought and produced by PW1 before PW7, PW7 asked the accused to produce the same along with a submission. Accordingly, the accused gave Ext.P4(g) submission to PW7. The accused stated therein that he was handing over all the documents and valuables, including cash of ₹2,20,000/- to the CMO. In the margin of Ext.P4(g), PW7 put an endorsement directing PW1 to receive the amount. On the reverse of Ext.P4(g), PW1 endorsed that the amount of ₹2,20,000/- was received from the accused. The evidence of PW1 and PW7 would further show that at 3.55 p.m., PW1 opened the safe in the presence of PW7 and the items therein were verified based on Ext.P2. Thus, it has clearly come out in the evidence of PW1 and PW7 that when the accused was relieved of his duty from the office of the Munsiff's Court, Nedumangad, on 8.6.2006, he did not hand over the valuables, including the amount of ₹2,20,000/- involved in O.S.No.335/2005 which has been kept in the safe in his custody, to PW1, and that he produced the amount of ₹2,20,000/- before PW7 only on 27.7.2006 and on the instruction

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of PW7, PW1 received the said amount. Even though PW1 and PW7 were cross-examined in length, there is nothing to discredit their testimony. It is to be noted that PW1 and PW7 are none other than the CMO and the Munsiff, respectively, at the Munsiff's Court, Nedumangad. They have no vengeance against the accused. I see no reason to disbelieve their evidence which is consistent, trustworthy, and convincing. Thus, the prosecution has succeeded in proving beyond reasonable doubt that the accused had unauthorisedly kept the above-said amount in his custody during the period from 8.6.2006 to 27.7.2006.

10. The learned counsel for the appellant relying on the decision of the Apex Court in Raghavender N. v. State of Andhra Pradesh, CBI [2021 KHC 6834] and two decisions of Single Bench of this Court in Thankappan v. State of Kerala

[1965 KHC 136] and Mohanan P.P. v. State of Kerala [2016(4) KHC 180] submitted that mere detention of property entrusted to a person is not sufficient for conviction under Section 409 of the IPC, unless, dishonest or fraudulent intention is proved. To attract the offence of criminal breach of trust, the prosecution must prove that there was entrustment of property with the accused, and he had dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the

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burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well. [See Jaikrishnadas Manohardas Desai and Another v. State of Bombay, AIR 1960 SC 880, K. Raghavan Nair v. State Of Kerala, 2012 KHC 420 and Vijayakumar v. State of Kerala, 2016 KHC 635]. In T. Retnadas v. State Of Kerala . (1999 KHC 2074), this court held that once the entrustment of amount with the accused is proved, unless the accused establishes by preponderance of probability that he has discharged his duty to disburse the said amount to beneficiary, he will be liable for misappropriation of that amount and he can be convicted for the offence under section 409 of IPC and section 5(1)(c) of the PC Act, 1947. It has come out in evidence that the accused who was

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entrusted with the aforesaid money and domain over the money as CMO of Munsiff's Court, Nedumandgad, has misappropriated and converted it to his personal use. It is settled that misappropriation, even for a short period, would attract the offence under Section 409 of the IPC. The dishonest and fraudulent intention of the accused is manifest taking into account all the circumstances mentioned above. Admittedly, the accused was working as a public servant during the period from 08.06.2006 to 27.07.2006, employed as CMO at the Munsiff's Court, Nedumangad. He misusing his official position as public servant misappropriated the amount entrusted with him. Thus, offence under section 13(2) r/w 13(1)(c) and (d) of the PC Act as well as under section 409 of IPC stands clearly proved.

11. The learned counsel for the appellant next submitted that Ext.P12 sanction to prosecute the accused is not proved in accordance with the law. The District Judge gave Ext.P12 order of sanction to prosecute the accused. However, Ext.P12 was proved through PW2, the Sheristedar of the District Court, Thiruvananthapuram. According to the counsel, independent application of mind before according prosecution sanction is a matter which could be proved only through the oral testimony of sanctioning authority. The learned counsel relied on the following

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decisions of this Court in support of his submission: Dikshit N.N. v. Superintendent, CBI, Thiruvananthapuram [2016 KHC 316], Savithri v. Deputy Superintendent, Vigilance and Anti-Corruption Bureau [2015 KHC 3702], Antony Cardoza v. State of Kerala [2011 (1) KHC 377] and Gurudas N. (Dr.) v. State of Kerala [2015 (3) KHC 852]. On the other hand, the learned Public Prosecutor relying on the decisions of the Apex Court in State v. T. Venkatesh Murthy [(2004) 7 SCC 763] and

State Of Madhya Pradesh v. Jiyalal . [AIR 2010 (SC) 1451] submitted that there is no requirement to examine the sanctioning authority to prove the sanction order and that the validity of sanction cannot be called in question at the appellate stage unless failure of justice is established.

12. All the four decisions relied on by the learned counsel for the appellant and mentioned above were rendered without taking note of Section 19(3) of the PC Act, which says that no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub Section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. There is no case for the appellant that a

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failure of justice had been caused by the non-examination of the sanctioning authority. In Jiyalal (supra), it has been held that there is no requirement to examine the District Magistrate who gave the sanction to prove the sanction order, but it is open for the accused to question the genuineness or validity of the sanction order. The defence did not question the genuineness or validity of Ext.P12 sanction order. The Apex Court in State through Inspector of Police, A.P. v. K.Narasimhachary (AIR 2006 SC 628) has held that an order of valid sanction can be proved either by producing the original sanction, which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show that the facts were placed before the sanctioning authority and the satisfaction arrived at by it. It is evident from Ext. P12 that the sanctioning authority had applied his mind to the facts of the case and the materials placed before him. Hence, the submission of the learned counsel for the appellant that sanction for prosecution has not been proved in accordance with the law also must fail.

13. The court below has appreciated the evidence on record in the correct perspective and rightly found that the prosecution has succeeded in proving beyond reasonable doubt that the accused has committed the offence under Section 13(2)

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read with 13(1)(c) and (d) of the PC Act and Section 409 IPC. On reappreciation of evidence, I find no reason to interfere with any of the findings of the court below. Considering the entire facts and circumstances of the case, I am of the view that the sentence imposed is reasonable. The supplemental appellant shall deposit the fine amount at the court below within two months failing which appropriate legal action will be initiated to realise the fine amount.

The appeal fails and it is, accordingly, dismissed.

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DR. KAUSER EDAPPAGATH

JUDGE

kp/APA

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APPENDIX OF CRL.A 1858/2011

PETITIONER ANNEXURES

Annexure-I A TRUE COPY OF THE DEATH CERTIFICATE

ISSUED BY THE REGISTRAR OF BIRTHS AND

DEATHS DATED 13.01.2021