WILSON J MANGALAM Vs. STATE

JUDGEMENT

(1.) The appellant in Crl.Appeal No. 318 of 2003 is the first accused in C.C. No. 16 of 1999 on the file of the Enquiry Commissioner and Special Judge, Thrissur. The second accused is the appellant in Crl.Appeal No. 325 of 2003. PW.14, the Deputy Superintendent of Police attached to Vigilance and Anti Corruption Bureau, Ernakulam, filed the charge sheet against the appellants alleging offences under Section 13(1) (c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act') and Section 409 r/w 34 IPC. It was alleged that the first accused was working as Senior Assistant Grade-I and the second accused was working as Assistant Manager at the Taluk Depot of the Kerala State Civil Supplies Corporation, Kochi and as such they are public servants as defined under Section 2(C) of the PC Act. Kerala State Civil Supplies Corporation was having retail sales of various essential commodities including Palmolien. The first accused was the custodian of the Palmolien and relevant records. The second accused was having supervisory authority over the functioning of the Taluk Depot. On 27.9.1990, two lorry loads of Palmolien were received in the Depot accompanied by Exts.P5 and P6 goods received sheets(GRS). As per Ext.P5, 125.75 Qtls. of Palmolein was received in the Depot. It was taken stock and duly accounted. As per Ext.P6 (GRS 627/7) 125.10 Qtls. of Palmolein was transported in lorry bearing registration No. KER 3990. Though the first accused acknowledged the receipt of the Palmolein in Ext.P6 that was not accounted in the stock register which was marked as Ext.P7 or in the daily stock-cum-sales return (DSSR) and that quantity of Palmolein worth Rs. 1,80,769.40/- was misappropriated and thereby committed breach of trust and had got undue pecuniary advantage and that to facilitate the misappropriation, the daily stock-cum-sales return and the stock register, were falsified by omitting to record the stock. The transactions at the Taluk Depot were audited by PW3 on 3.5.1991 and 4.5.1991. Ext.P4 is a special report submitted by PW3 regarding the misappropriation of the commodities including Palmolein. Basing upon Ext.P4, a case was registered against the first accused by PW11, the then Deputy Superintendent of Police for which Ext.P25 First Information Report was prepared for offences under Section 13(1) (c) and (d) read with Section 13(2) of the PC Act and Section 409 IPC. The investigation was taken over by PW.13, which was completed by PW. 14 and filed a charge sheet before the trial court against the appellants for the above offences r/w 34 IPC. The learned Special Judge took cognizance and issued process responding at which the appellants entered appearance. After furnishing the copies of the final report and connected records, they were heard. On finding that there are materials to send the appellants for trial for offences under Section 13(1)(c) and (d) of PC Act 1988 r/w 13(2) and under Section 381, 403, 409, 420, 468, 471 and 477A r/w Section 34 IPC, a charge was framed. When read over and explained the appellants pleaded not guilty. Hence, the appellants were sent for trial. On the side of the prosecution, PWs. 1 to 14 were examined and Exts.Pl to P33 were marked. After closing the evidence for the prosecution the statement of the appellants under Section 313 (1) (b) of the Code of Criminal Procedure were recorded. The appellants admitted there official status. The receipt of Palmolein by Ext.P6 was not disputed, but they took up a defence that they are innocent and they had not committed any offence as alleged. The first accused, responding to the call to enter his defence, examined DWs. 1 to 3. On the side of the defence Exts. D1 to D7 were marked. The second accused didn't adduce any evidence. The learned Special Judge after hearing either side and perusing the evidence on record arrived at a finding that the prosecution had succeeded to establish offences under Sections 13(1) (c) and (d) r/w 13(2) of the PC Act and under Sections 409, 468 and 477A r/w 34 IPC. For offences under Sections 381,403,420 and 471, the appellants were found not guilty. Consequently they were acquitted for the said offfences. After hearing either side regarding sentence for the offences for which the appellants were found guilty, the learned Special Judge sentenced the appellants to undergo rigorous imprisonment each for 4 years for offences under Section 13 (1) (c) and (d) r/w 13 (2) of the PC Act. For offence under Section 13(1) (c) r/w 13(2) a fine of Rs. 1,50,000/- was also imposed. For offences under Sections 409,468, and 477 AIPC, the appellants were sentenced to rigorous imprisonment for two years each with order to run the substantive sentences concurrently. Assailing the above conviction and sentence, these appeals were preferred.

(2.) I heard Adv. Shri. B. Raman Pillai appearing for the first accused and Adv. Shri. Sojan Micheal appearing for the second accused, and Shri. Alax Mathew Thomra the learned Public Prosecutor and perused the evidence on record as well as the judgment impugned.

(3.) As mentioned earlier, the appellants didn't dispute the status as public servant. The Official Status is proved by testimonies of PWs.7 and 8. PW1, the Director of Civil Supplies, though speak about Ext.Pl order whereby sanction was accorded to prosecute the appellants, didn't speak about the official status of the appellants. PW3, the auditor had identified the signature of the 1st accused and Ext.P16, his charge report. But regarding the official status of the appellants there is no mention in his evidence. PW4 is a Senior Assistant who assisted PW3 in the audit. PW5 is yet another Assistant from whom the 1st accused took charge for which Ext.P16 charge report was prepared and attested by PW5 and the 1st accused. But he had not specifically mentioned about the official status of the 1st accused. Though PW5 would depose that the 2nd accused is known to him, there is no mention about the official status of the 2nd accused. PW7, another Senior Assistant had deposed that the Is' accused was working as Senior Assistant Grade II and that Ext.P6 GRS was prepared and signed by the 1" accused. PW8, another Assistant Manager had deposed that during his tenure the 1 accused took charge in the Taluk Depot and in Ext. P16 he had countersigned after PW5 and that the Is' accused signed it and that the 2nd accused took charge as Assistant Manager from PW8 and that Ext.P21(b) is the charge handover report signed by the 2nd accused and himself. The evidence of PW7 and 8 regarding the official status of the appellant was not at all challenged in cross examination. The defence evidence also would reveal the status of the appellants. The evidence of PW1 would show that Ext. P1 order was issued according sanction to prosecute the appellants for the above said offences. Therefore, concurring with the lower court, I find that the appellants are public servants and they were prosecuted with due sanction.