K.S. NAZAR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant herein is the 1st accused in C.C. No. 27/2001 of the Special Court (Vigilance), Thrissur. He was shop manager -in -charge of the Maveli Store, Fort Kochi during 1996 -97. The 2nd accused in the case was a helper in the said Maveli Store. On the allegation that the two accused, as part of a criminal conspiracy, misappropriated an amount of Rs. 1,32,666.95 by way of short remittance of sale proceeds of maveli items and non -maveli items and also by way of unaccounted sale of such items, causing shortage of stock, during the period from 30.4.1996 to 26.3.1997, they faced trial before the court below under the Prevention of Corruption Act 1988 (for short 'P.C. Act') and also under the provisions of the Indian Penal Code. Crime in the case was initially registered only against the 1st accused by the Deputy Superintendent of Police, Vigilance and Anti -Corruption Bureau, Ernakulam (VACB) on the basis of a report of audit. It is alleged that the two accused misappropriated the amount of sale proceeds of maveli and non -maveli items from the funds of the maveli store without making remittance of the sale proceeds in the bank, and the 1st accused did such things with the help and assistance of the helper (2nd accused) as part of a conspiracy hatched by them to derive unlawful benefits. On the finding regarding involvement of the helper in the acts of misappropriation done by the 1st accused, the VACB submitted final report in court against the two accused.

(2.) AFTER complying with the procedural formalities the learned Special Judge, (Vigilance) framed a charge against the two accused under Section 13(2) r/w. 13(1)(c) of the P.C. Act, and also under Sections 120B, 409, 471 and 477A of the Indian Penal Code, to which both the accused pleaded not guilty. The prosecution examined eight witnesses in the trial court, and also marked Exts. P1 to P87 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and denied the allegation of misappropriation. The accused did not adduce any evidence in defence. However, Ext. D1 was marked during trial. On an appreciation of the entire evidence, the court below found the 2nd accused not guilty of any of the offences alleged in the charge. Accordingly, he was acquitted. But as regards the 1st accused, the trial court found that the offences under Sections 120B, 471 and 477A IPC are not proved against him. However, he was convicted under Section 13(2) r/w. 13(1)(c) of the P.C. Act, and also under Section 409 IPC, on the finding that the 1st accused had misappropriated an amount of Rs. 86,013.90 in respect of maveli items, and Rs. 17,227.85 in respect of non -maveli items during the period from 30.4.1996 to 26.3.1997, by way of short remittance of the sale proceeds of those items promptly and properly. As regards the alleged shortage in the stock of maveli and non -maveli items, the trial court found against the prosecution. On conviction, the 1st accused was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs. 1,00,000/ - under Section 13(2) r/w. 13(1)(c) of the P.C. Act, and to undergo another period of rigorous imprisonment for one year under Section 409 IPC by judgment dated 24.5.2005. Aggrieved by the said judgment of conviction the 1st accused has come up in appeal.

(3.) OF the eight witnesses examined in the trial court, P.W. 2 and P.W. 3 are the important witnesses to prove the alleged misappropriation. P.W. 5 is the Deputy Superintendent of Police, VACB, who registered the FIR in this case and P.W. 6 to P.W. 8 are the police officers who conducted investigation. There is absolutely nothing in the evidence of P.W. 6 to P.W. 8 to show that there was any flaw or irregularity or illegality in the investigation. There is absolutely nothing to show that anything done by P.W. 6 to P.W. 8 during investigation had caused any sort of prejudice to the accused. I find on an appreciation of the evidence that investigation in this case was properly and legally conducted, without causing any sort of prejudice to the accused. P.W. 3 is the Assistant Manager of the Taluk Depot of Kochi Civil Supplies Corporation, examined to prove the duties and responsibilities of the Managers of Maveli Stores, and P.W. 2 is the auditor who detected the instances of misappropriation on audit. Crime was registered in this case on the basis of the report of audit made by P.W. 2. Ext. P2 is the audit file, and Ext. P2(a) is the audit report containing the various instances of misappropriation made by the appellant by short remittance of sale proceeds of maveli and non -maveli items.