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CASE NO.: Appeal (crl.)  1542 of 2007

PETITIONER: Radha Pisharassiar Amma

RESPONDENT: State of  Kerala

DATE OF JUDGMENT: 14/11/2007

BENCH: H.K. SEMA & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.      1542                OF 2007 (Arising out of Special Leave Petition (Crl.) No. 5705 of 2005) WITH Crl. Appeal Nos. 1543, 1544, 1545, 1546 and  1547 of 2007  (Arising out of SLP(Crl.) Nos. 5744/2005, 5858/2005,  4683/2006, 4687/2006 and 4684/2006)     

H.K.SEMA,J.

1.              Leave granted.

2.              These Appeals are directed against the judgment  and order dated 10th August, 2005 by the High Court of Kerala  in Criminal Appeals.  The Appeals arising out of SLP(Crl.) Nos.  5705/2005, 5744/2005 and  5858/2005 are preferred by  accused Nos. 4 to 7.  The Appeals arising out of SLP(Crl.) Nos.  4683/2006, 4687/2006 and  4684/2006 are preferred by the  State. 3.              Accused Nos. 1 to 10 were charged with the offence  under Sections 409, 468, 471, 477-A and 120-B, Indian Penal  Code.  The accused were also charged under Section 13(1)(c)  read with Section 13(2) of Prevention of Corruption Act, 1988  (in short ‘the Act’).    They were convicted by the Trial Court  and Appeals were confirmed by the High Court.  The allegation  against them are that they have encashed the T.A. Bills for an  amount of Rs.51,24,500/-, the amount funded for the Indian  Population Project (I.P.P.), Idukki on the basis of fake  allotment letters, preparing false acquittal rolls and made false  entries in the books and  receipts and misappropriated a sum  of Rs.50,07,405/- and in furtherance to the criminal  conspiracy with the dishonest intentions, fraudulently  misappropriated the said sum and thereby committed criminal  breach of trust, falsification of acts of forgery for the purpose  of cheating and knowingly used forged documents as genuine  and thereby committed the offence punishable under the  aforesaid sections.

4.              At the relevant time, A-1 was working as Medical  Officer at the Primary Health Centre, Chithirapuram.  A-2 was  Head Clerk.  A-3 (deceased) was working as Health Inspector.   A-4 and A-5 were working as Sub Treasury Officer, Devikulam.   A-6 was working as Junior Superintendent.  A-7 was working  as Junior Accountant.  A-8 was working as L.D. Clerk at the  Primary Health Centre, Chithirapuram.  A-9 was working as  U.D. Clerk in I.P.P., Idukki and A-10 (since deceased) was  working as Project Officer, I.P.P., Idukki.

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5.              At this stage, it will be relevant to mention that A-1  \026 Medical Officer and A-10 Project Officer committed suicide  during the trial.  A-3 expired prior to the trial.  This Court  dismissed the appeal of A-2, who was working as Head Clerk.   A-8 was working as L.D. Clerk at the Primary Health Centre,  Chithirapuram.  This Court also dismissed the Appeal of A-9  who was working as U.D. Clerk in I.P.P., Idukki. 6.      By the impugned order, the High Court convicted A-4 to  A-7 under Section 13(1)(c) read with Section 13(2) of the Act  and sentenced them to undergo R.I. for two years each and  pay a fine of Rs. 50,000/- each, if default in payment of fine,  they were directed to undergo Simple Imprisonment for a  period of six months each.  The High Court found A-4 to A-7  not guilty under Section 409, 468, 471, 477-A and 120-B,  I.P.C. and accordingly their convictions under aforesaid  Sections of law were set aside. 7.              While issuing a notice on 28.11.2005, this Court  also issued notice as to why A-4 to A-7 should not be  convicted under Section 409, 468, 471, 477-A and 120-B,  I.P.C., apart from conviction under Section 13(1)(c) read with  Section 13(2) of the Act.  The accused were also admitted to  bail on their executing a bond of Rs.10,000/- each in the like  amount with two solvent sureties to the satisfaction of the  Trial Court.  All the accused are on bail. 8.              We have heard the learned counsels appearing on  behalf of the parties at great length.   9.              Section 409 deals with criminal breach of trust by  public servants.  Section 468 deals with forgery for the  purpose of cheating.  Section 471 deals with using forged  documents as genuine.  Section 477-A deals with falsification  of accounts and Section 120-B deals with punishment for  criminal conspiracy. 10.             The principal contention of the learned counsel for  the appellants is that there is no iota of evidence against the  accused for the offences under the aforesaid sections of law.   In other words, it is urged that none of ingredients of the  aforesaid sections of law are established against the accused  by the prosecution and, therefore, the accused are entitled to  be acquitted and there is no infirmity in the order passed by  the High Court acquitting A-4 to A-7 under Sections 409, 468,  471, 477-A and 120-B, I.P.C. and no interference is warranted  by this Court. 11.             The conviction of accused Nos. 4 to 7 recorded by  the High Court under Section 13(1)(c) read with Section 13(2)  of the Act, it is urged, is not at all warranted inasmuch as  there is no evidence that the accused dishonestly or  fraudulently misappropriated or otherwise converted any  property entrusted to them or under their control as  public  servants or allowed any other person to do so.  It is further  contended that the property was not at all entrusted to A-4 to  A-7 under their control and there is no question of the  accused being dishonestly or fraudulently misappropriated it  or otherwise allowed any other person to do so. 12.             Per contra, learned counsel for the State contended  that for an offence under Section 120-B, direct evidence is  seldom available and, therefore, having regard to the  surrounding circumstances, A-4 to A-7 committed criminal  conspiracy and they are guilty under Section 120-B and also  under Sections 409, 468, 471, 477-A, I.P.C. and Section  13(1)(c) read with Section 13(2) of  Act. 13.             To answer this question, it may be necessary to  refer to the various documents examined by the Trial Court,  High Court and also placed before us.  First, we shall deal with  the offence of conspiracy.  As contended by the State Counsel  that the original sanction order at 590 (Exhibit P26a), the

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expenditure under head ‘TA’ is only Rs.50,000/- for the fiscal  year 1990-91.  However, the alleged forged allotment order  dated 22.8.1990 for the year 1990-91 shown under head ‘TA’  is Rs. 1,70,000/-.  It is accordingly urged that the aforesaid  sanction allotment letter has been forged by A-4 to A-7 in  conspiracy with the other accused and they are liable for  punishment under Section 120-B. 14.             After going through the entire documents and  evidence and arguments advanced by both sides, we are  unable to countenance with the contention of the State.  The  original allotment letter dated 8.5.1990 (Exhibit P26a) reveals  that a copy thereof has been endorsed to Sub Treasury Officer,  Idukki.  There is no endorsement of the copy of the said  allotment order to the Sub Treasury Officer, Devikulam in  which A-4 to A-7 were working in their respective posts.  In  this connection, the prosecution has examined its star witness  Mr. Selvaraj as  PW-5.   This witness has stated that from  1984 to 1993 he was posted as U.D.C. at Health Centre  Directorate at Trivandrum.  He has further stated that he has  worked at I.P.P.  He identified the allotment register at I.P.P.  Office (marked Exhibit P-25).  He has stated that Idukki I.P.P.  received Rs.50,000/- under head ’T.A.’ for 1991.  He further  stated that the original allotment letter (Exhibit P26a) is sent  to Sub Treasury by Painavu Idukki and duplicate to the  Project Officer, I.P.P., Idukki.  He did not state that the original  allotment letter (Exhibit P26a) under head ’TA’ has also been  sent to Sub Treasury Officer, Devikulam.  He has not stated  that a copy of the original allotment letter (marked Exhibit  P26a) was sent to any other Treasury Officer. 15.             From the evidence of PW-5, it can be revealed that a  conspiracy was hatched between A-1, A-10, A-2, A-8 and A-9.   As already noticed, A-4 to A-7 were working as Sub Treasury  Officers at Devikulam.  The prosecution has failed to prove  that a copy of the original sanction letter (Exhibit P26a) was  also sent to S.T.O., Devikulam.  On the other hand, the alleged  forged allotment letter dated 22.8.1990 (Exhibit P-5) showing  that the amount of Rs.1,70,000/- under the head ‘TA’ was  sent to S.T.O., Devikulam where the accused A-4 to A-7 were  working.  It is the specific case of the accused that they did  not receive any allotment order other than the allotment letter  dated 22.8.1990 (Exhibit P-5) showing the allotment of  Rs.1,70,000/- under T.A. to Devikulam Sub Treasury.  The  prosecution has miserably failed to establish the essential  ingredients of the conspiracy under Section 120-B of I.P.C. by  leading cogent and convincing evidence against A-4 to A-7.   16.             It is by now well-established principle of law that for  the offence under Section 409, 467 and 471, the existence of  mens rea (guilty mind) must be proved.  It is on record that the  Respondent Nos. 4 to 7 were working as S.T.Os., Devikulam.   From the prosecution evidence, it appears that the conspiracy  was hatched at Chithirapuram, Primary Health Centre.  So far  with regard to the offence under Section 467, I.P.C. is  concerned, there is no evidence to show that the appellants  before us, forged a document which purported to be a valuable  security.  There is also no evidence that the appellants had  knowledge of fact that the allotment letter was a forged letter.   Again for an offence under Section 409 it must be proved that  the person entrusted with the property, or any dominion over  property in his capacity as a public servant committed  criminal breach of trust in respect of such property as defined  in Section 405, I.P.C.  The evidence must show that he  dishonestly misappropriated or converted to his own use that  property or dishonestly used or dispossessed that property in  violation of any direction of law prescribing the mode in which  such trust is to be discharged.  In the present case, there is no

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evidence that A-4 to A-7 dishonestly misappropriated or  converted to their own use the amount of T.A.  On record it is  established that A-4 to A-7 are not the beneficiaries of the  misappropriated amount. 17.             In the absence of any evidence to show that A-4 to  A-7 were acting in conspiracy with A-1, A-2, A-8, A-9 and A-10  and that A-4 to A-7 have fraudulently and dishonestly  prepared forged bill on the basis of forged allotment letter, the  offences under Sections 467, 471, 477-A or Section 409 are  not proved against the appellants.  Consequently, the offence  under the provision of the Prevention of Corruption Act is also  not made out.  The trial court was, therefore, not justified to  convict A-4 to A-7 under the aforesaid sections of law.   18.             In the result, Appeals filed by Accused Nos. 4 to 7  are hereby allowed.  Conviction recorded and sentence  imposed upon A-4 to A-7 by the Trial Court and confirmed by  the High Court under Section 13(1)(c) read with Section 13(2)  are hereby set aside.  The Appellants stand acquitted.  They  are on bail and their bonds and sureties are discharged.  19.             Appeals filed by the State are dismissed.  Notice  issued by this Court on 28.11.2005 against A-4 to A-7 shall  stand discharged.