STATE OF KERALA Vs. MOHAMMED KUTTY

JUDGEMENT

(1.) This appeal is filed by the State against the judgment of the Special Judge of Trivandrum acquitting the respondent who was prosecuted under S.5(2) read with S.5(1)(c) and (d) of the Prevention of Corruption Act (Act II of 1947) - hereinafter referred to as the Act.

(2.) The accused Sri. Mohammadkutty was an Inspector in the Audit Section of the Cooperative Department in Kerala State. In 1956 he was in charge of the Kanjirappally circle. Among the societies in his charge there were two societies, the Kappad Cooperative society No. 980 and Upputhura Cooperative Society No. 2985. Yearly audit had to be conducted of these societies by the Cooperative Inspector and the society had to pay to Government the audit fees. Audits for the year 1953-54 and 1954-55 conducted by the predecessors of the accused & audit fees for that period were in arrears. The accused conducted the audit for the year 1955-56. On 27-6 56 he brought to the notice of Pw. 1 Sri Mathew the Secretary of the Society that audit fees for the previous years were in arrears and requested him for payment. Pw. 1 paid Rs. 28/- being the audit fees for the two previous years to the accused and the accused promised to remit the same into the treasury. The accused did not remit the money as agreed but utilised the amount for his own purposes. Similarly a sum of Rs. 15/- was entrusted on 7-10-56 to the accused by Pw. 2 the Secretary of the Upputhura Society being the audit charges in arrears and a voucher Ext. P-6 was issued by the accused for receipt of the amount. This amount was also not remitted into the treasury, but appropriated by the accused. On a complaint regarding certain irregularities committed by the accused Pw. 3 the Deputy Registrar of Cooperative Societies conducted an enquiry and in the course of the enquiry the non remittance of these amounts were noticed and the explanation of the accused was called for. On 16-6-1959 the accused remitted Rs. 24 under chalan Ext. P-14 and the balance of Rs. 4/- was remitted in the treasury on 27-6-59 under chalan Ext. P-15. The amount received from Uputhura Society was remitted on 20-7-59 under chalan Ext. P-16. The matter was then reported to the X-Branch police who after obtaining necessary sanction investigated into the case and laid the charge sheet against the accused.

(3.) The receipt of the amount has not been denied by the accused even though in the case of Kappad Society he would have it that it was not Pw. 1 who entrusted the money to him but it was the peon Dw. 1 who gave him the money. That is quite immaterial. He also admitted that money was paid by Pw. 2 & that a voucher Ex. P6 was issued by him. His contention is that the delay in remittance was due to pressure of work and not because he had misappropriated the amount. The learned Judge found entrustment and misappropriation duly proved by the prosecution but found the accused not guilty as it was not the duty of the accused to collect audit fees & remit the same into the treasury & that an offence under S.5(2) cannot be said to have been made out as the entrustment of property is not in his capacity as public servant and the alleged misconduct was not committed in the discharge of his duty as a public servant. The State questions the legality of this finding in this appeal. The accused appeared in person and argued the case. Advocate Sri. K.P. Radhakrishna Menon appeared as amicus curiae to argue the question of law & I wish to record my appreciation for the kind help rendered by him.