BEFORE HIGH COURT OF
KERALA
Case
Crl. Appeal No 903/2016
Appellant :Appukuttan
Nair
54years
S/O Narayanan Nair
Puzhathalam,
Kollam District
Respondent: State of
Kerala
Represented by Dy. S. P
Vigilance anti corruption
Bureau, Wayanad.
FACTS
Appellant is that the accused in C.C 20/2010
On the file of enquiry commissioner and special judge,
Kozhikode. He was convicted for the offence under 13(2) r/w 13(1) (c) and (d)
of prevention of corruption Act to undergo rigorous imprisonment for 2years
each and to pay a fine of 2000/- each.
The gist of
prosecution allegation is that the appellant is that the tribal extension
officer had misappropriated Rs. 98,120/-which was encrusted to him towards the
completion of ultimate phase of 11 houses.
Absolutely there is no evidence to show that appellant has dishonestly
or fraudulently misappropriated the said amount. The prosecution witness had
deposed before the court that they received almost entire amount from the
accused towards labour charge and material cost.Most of the houses which were
in abandoned stage when the work was entrusted to the accused. The appellant
was made as a scapegoat by higher officials who had nexus of Rs. 98,120/-were
expanded by the appellant for the construction. Moreover the said amount were
also recovered from his salary until his retirement. There is no sufficient
evidence to convict the accused and the sentence imposed is harsh and high.
Hence criminal Appeal against conviction.
ISSUE OF THE CASE
· Whether
appellant had committed any criminal misconduct?
· Is
it necessary to acquit the appellant under Sec. 409&420 IPC?
LEGAL PROVISION INVOLVED
Sec.13(2) of prevention of corruption Act: Any
public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than one year but which may
extend to seven years and shall also be liable to fine.
The appellant was acquitted for the offences under
sec. 409&420 IPC
Sec. 409 IPC: Criminal breach of
trust by public servant, or by banker, merchant or agent.—Whoever, being in any
manner entrusted with property, or with any dominion over property in his
capacity of a public servant or in the way of his business as a banker,
merchant, factor, broker, attorney or agent, commits criminal breach of trust
in respect of that property, shall be punished with 1[imprisonment for life],
or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Sec.420 IPC: cheating and
dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any person, or to make, alter
or destroy the whole or any part of a valuable security, or anything which is
signed or sealed, and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
JUDGEMENT
It can be held that appellant is not guilty under sec. 409
& 420 IPC. But guilty under sec. 13(2) r/w 13(1) (c) and (d) of prevention
of corruption Act 1988.
The accused is convicted and sentenced to undergo Rigorous
imprisonment for 2years each and to pay a fine of Rs. 2000/-each and in default
to undergo Rigorous imprisonment for six months each under section 13(2) r/w 13(1)
(c) and (d) of prevention of corruption Act 1988.The substantive sentences
shall run concurrently setoff if any is allowed under sec. 428 criminal
procedure code. The accused is acquitted under sec. 248(1) Cr. P. C of the
offences under sec. 490 & 420 of IPC.
REASON FOR JUDGEMENT
·
From the facts itself it is very clear that there
were absolutely no evidence to show that appellant has dishonestly or
fraudulently misappropriated the said amount. Because the prosecution witness
had deposed before the court that they received almost entire amount from the
accused towards labour charge and material cost. Most of the
houses which were in abandoned stage when the work was entrusted to the
accused. The appellant was made as a scapegoat by higher officials who had
nexus of Rs. 98,120/-were expanded by the appellant for the construction.
Moreover the said amount were also recovered from his salary until his
retirement. There is no sufficient
evidence to convict
the accused and the sentence imposed is harsh and high.
SIMILAR CASE LAWS
• Karam Chand vs State Of Himachal
Pradesh on 8 February, 2013
Bench: Honourable Mr. Sharma
In the Hugh court of HIMACHAL PRADESH AT SHIMLA
Decided on February 8, 2013
1.petitioners, named hereinabove, have approached this
Court within the instant proceedings filed under S.438 CrPC, praying therein
for grant of anticipatory bail in reference to FIR No. 224 of 2013, dated
15.8.2013, under Whether reporters of the local papers could also be allowed to
ascertain the judgment?
2.Sec.420, 409, 120-B, 201, 468 and 471 of IPC and
S.13(2) of the Prevention of Corruption Act, 1988, registered at police
Station, Solan, District Solan, Himachal Pradesh.
3. Sequel to orders dated 21.1.2019, Dr. Shiv Kumar,
Addl. Superintendent of Police, Solan, has come present alongwith the record.
Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on
record status report, prepared on the idea of the investigation administered by
the Investigating Agency. Record perused and returned.
4. Mr. Dinesh Thakur, learned Additional Advocate
General, on the instructions of the Investigating Officer, who is present in
Court, fairly stated that investigation within the case is complete qua the
bail petitioners and at this stage, nothing is required to be recovered from
them. He further stated that while enlarging the bail petitioners on bail, this
Court may specifically direct them to form themselves available for
investigation as and when required by the investigating agency because
investigation qua other co-accused, who are HPBL employees, remains pending.
5. Close scrutiny of the status report/record, reveals
that in July, 2012 company namely, Himachal Pradesh Beverage Limited (for short
‘HPBL’), came to be established by the State of Himachal Pradesh for the aim of
liquor business. Similarly, for the sale and buy of the liquor, company
formulated Liquor Sales Policy for the years 2012-
2013, wherein as per Clause 4.1 of the Liquor Policy, no
liquor might be sold on credit basis, but as per investigating agency, all the
bail petitioners, who are valid licensees, in connivance with the HPBL
officials, managed to get liquor on credit basis then successively deposited
less amount and intrinsically , caused huge loss to the general public
exchequer.
6. As per investigation, bail petitioners namely,
Karam Chand and Naresh Kumar, who had licence within the name of M/s Thakur
Wine had purchased liquor within the sum of Rs. 4,89,43,041.35/- from the HPBL
and successively deposited a sum of Rs. 3,87,30,538/- within the account of
‘HPBL’ and as of today a sum of Rs.1,02,12,503.35/- remains payable by them to
the HPBL.
7. As per investigation, bail petitioners in
connivance with the officials of the corporate , firstly managed to get the
liquor on credit then forged/manipulated the official records with a view to
point out that entire amount stands deposited. Investigation qua the bail
petitioners stands already completed, whereas investigation with reference to
the role played by the officials of ‘HPBL’ remains underway and intrinsically ,
at this stage, there’s nothing concrete on record to suggest that the bail
petitioners in connivance with the officials of the HPBL manipulated the
records to their advantage, that too with a .
View to cheat the corporate .
8. Leaving everything aside, it’s been delivered to
the notice of this Court that ‘HPBL’ has already filed civil suits for the
recovery of amount payable by bail petitioners within the Civil Court, which
fact has not been disputed by the learned Additional Advocate GeneralNares.
9. Having perused the record and heard the learned
counsel representing the parties, this Court is of the view that no fruitful
purpose would be served just in case bail petitioners are sent behind the bars,
especially when investigation is complete and zip is required to be recovered
from them. Guilt, if any, of the bail petitioners is yet to be proved, in
accordance with law and intrinsically , this Court deems it fit enlarge them on
bail at this stage with the condition that they shall make themselves available
for trial and investigation as and when requiredy by the investigating agency.
10.The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the subsequent
principles to be kept in mind, while deciding petition for bail:
(i) Whether there’s any clear or reasonable ground to
believe that the accused had committed the offence;
(ii) Nature and gravity of the accusation;
(iii) Severity of the punishment within the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(iv) Character, behaviour, means, position and
standing of the accused;
(v) Likelihood of the offence being repeated;
(vi) Reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.
Thus court held that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, then the investigating agency shall be free to move this court for cancellation of this bail.