K.K. SASI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant herein was the Upper Division Clerk at the Forest Timber Sales Depot, Veettoor Range, during June 1998 to September, 1998. On the allegation that he dishonestly misappropriated an amount of Rs. 82,179/ - in June 1998 and in September 1998 by short remittance of the amount collected at the Forest Timber Sales Depot by way of Ground Rent, Tax, EMD etc, the appellant faced prosecution before the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C. No. 64 of 2003. On detection of the said dishonest misappropriation by fraudulent means, a crime was registered against the appellant by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau (VACB), Ernakulam, and after investigation, the vigilance submitted final report in the trial court. Investigation was conducted by an Inspector of the VACB. Final report was submitted by the vigilance after obtaining necessary sanction to prosecute the accused, under Section 19 of the Prevention of Corruption Act (for short "the P.C. Act").

(2.) THE accused entered appearance in the trial court and pleaded not guilty to the charge framed against him under Section 13(2) read with 13(1)(c) and 13(1)(d) of the P.C. Act, and under Sections 409, 468, 471 and 477A of Indian Penal Code. The prosecution examined 15 witnesses and proved Exts. P1 to P37 documents during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances and projected a defence that the Forest Range Officer, who was the head of office, was in fact responsible for the alleged short remittance, being the person responsible to receive money at the Forest Depot, and that money was in fact taken to the Sub Treasury by the Forest Range Officer. Thus the accused contended during trial, by way of defence, that the alleged misappropriation must have been committed by the Forest Range Officer. Though opportunity was granted, the accused did not adduce any evidence in defence.

(3.) WHEN this appeal came up for hearing, the learned counsel for the appellant submitted that money received at the Forest Timber Sales Depot was not in fact taken to the Sub Treasury by the accused for remittance, and that if at all any amount was lost, it must have been misappropriated by the Forest Range officer, who was in charge of the Forest Timber Sales Depot. As regards the evidence on facts proving misappropriation by short remittance, not much was argued by the learned counsel, because the fact of dishonest misappropriation from public funds by short remittance is practically admitted by the accused, subject to the contention that it must have been committed by the Forest Range Officer in charge of the Forest Timber Sales Depot. Thus, the very short point for decision is whether the alleged short remittance was in fact committed by the accused, or whether money was in fact taken by the accused to the Sub Treasury for remittance in the Treasury, though the Range Officer was in fact responsible for the receipt of money and for prompt remittance as the head of office. It is common practice that no head of office will go to the Sub Treasury and remit amount when the office has ministerial staff to discharge the ministerial functions. If such contention otherwise is accepted, very many heads of office will have to be prosecuted for the malpractices and misappropriation committed by the ministerial staff. Anyway, let me analyse the evidence and see whether the appellant was in fact entrusted with the money to be remitted in the treasury and whether full remittance was made by him as directed and expected. If evidence proves that the accused was in fact entrusted with the money as ministerial staff for making remittance, and if he did not remit the full amount in Treasury, or misappropriated something from the said amount, he will have to be found guilty and convicted, despite the fact that the head of office responsible to receive the money at the office was the Forest Range Officer. In short, conviction cannot be made by the court on certain assumptions and presumptions regarding responsibility of the head of office.