Judgement on "Appukuttan Nair vs state of Kerala" by Gayathri R


 


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.