1. These appeals have been filed by the appellant by name, Sri.C.Hariharan, impugning common judgment, dated 29.02.2012, in C.C.Nos.20/2009, 21/2009 and 22/2009 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram.
2. Heard the learned counsel for the appellant and the learned Special Public Prosecutor appearing for the prosecution. Perused the common verdict impugned and the evidence available, along with the decisions submitted by the learned counsel for the appellant.
3. The case of the prosecution is that the accused, being a public servant employed as L.D. Clerk at the Government District Ayurveda Hospital, Varkkala, was entrusted with the preparation of establishment pay bills and the proper maintenance of Government records in connection with the transaction of Government money etc., during the period between May 1993 and October 1997. While so, by abusing his position as public servant, he had prepared false establishment pay bills, produced them before the Chief Medical Officers (CMOs) of the aforesaid hospital as genuine, and obtained the signatures of the Chief Medical Officers and also got the authorization to draw the bills from Sub Treasury, Varkkala. Thereafter, he drew a total excess amount of Rs.1,84,528/- (Rupees one lakh eighty four thousand five hundred and twenty eight only) during the said period, and thereby he dishonestly and fraudulently misappropriated or otherwise converted the said amount for his own use by making false entries in the relevant records, such as Acquittance Registers, Cash Books, Pay Bill Registers, Treasury Bill Books, and obtained for himself a pecuniary advantage to the extent of Rs.1,84,528/-. Thereby the accused committed criminal breach of trust in respect of the said amount, forgery of establishment pay bills intending that it should be used for the purpose of cheating, and falsification of the said records. On this premise, the prosecution alleges commission of offences punishable under Sections 409, 468, 471 and 477A of the Indian Penal Code (hereinafter referred to as 'IPC' for short) as well as under Sections 13(1)(c) and 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act' for short) by the accused.
4. The learned Special Judge tried all these cases jointly and recorded the evidence. PW1 to PW17 were examined and Exts.P1 to P69 were marked on the side of the prosecution. No defence evidence was adduced.
5. Finally, the learned Special Judge found that in all these cases, the accused had committed offences punishable under Sections 409, 468, 471 and 477A of IPC as well as under Sections 13(1)(c) and 13(1)(d) r/w. 13(2) of the PC Act. Accordingly, the appellant/accused was convicted and sentenced as under:
“Considering the facts and circumstances of the case, the accused is sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹ 35,000/- (Rupees Thirty Five thousand only) each and in default of payment of fine to undergo rigorous imprisonment for three months each under S.13(2) r/w.S.13(1)(c) and S.13(2) r/w.13(1)(d) of P.C.Act, 1988 in each of three cases. The accused is also sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹ 1,000/- (Rupees Thousand only) each and in default of payment of fine to undergo rigorous imprisonment for three months each under Ss.409, 468 and 477-A of I.P.C. In each of the three cases. The accused is further sentenced to pay a fine of ₹ 1,000/- (Rupees Thousand only) and in default of payment of fine to undergo simple imprisonment for one month under S.471 r/w.S.465 of I.P.C. In each of the three cases. It is directed that the sentence of imprisonments in each case shall run concurrently. Set off under S.428 of Cr.P.C. is allowed.”
6. The learned counsel appearing for the appellant raised multiple contentions to unsustain the common verdict. The prime contention raised is that the accused is not the person in charge of the Establishment Section of the office and he was also not the Drawing and Disbursing Officer pertaining to the salary of non-gazetted officers. According to him, as deposed by PW5 to PW9, it was the duty of the Drawing and Disbursing Officer to draw and disburse the salary and allowances of the staff. To substantiate this point with the aid of the mandate of the Kerala Treasury Code and the rules thereunder, the learned counsel read out the relevant provisions in the Kerala Treasury Code. viz., 28(a), 169, 171 and 432 , which are as under:
“28.(a) Subject as hereinafter provided in this rule, the procedure to be observed by a government servant in regard to moneys withdrawn from the Government Account for expenditure shall be regulated by the provisions made in this behalf in Part V.
169. (a) *The pay and allowances of an establishment should be drawn by the gazetted officers-in-charge of it.
Exception.—(1) Such classes of non-gazetted officers as are mentioned in Appendix 10 may draw bills relating to the pay and allowances of their own and their establishment without counter signature provided they possess the prescribed test qualification which should be certified in the bill. If they do not possess the prescribed test qualification the bill should be countersigned by the Controlling Officer referred to in Rule 113 of Part II of the Kerala Service Rules.
(2) A Government Servant who is reverted from a Gazetted post to a Non-Gazetted post may draw his arrear claims for pay and allowances in respect of the period of Gazetted service in bills in Form T.R. 46 on the strength of the pay slip/letter of authority issued by the Accountant General. Such bills being subject to countersignature by the Gazetted controlling Officer. In such cases, the surrender of Last Pay Certificate as required in rule 19 of the Kerala Treasury Code to the Treasury Officer is not necessary.
NOTE.—(i) In the case of non-gazetted heads of offices having separate establishment of their own their pay and allowances shall be drawn in their Establishment Pay Bills.
NOTE.—(ii) In the case of non-gazetted officers like Co-operative Inspector of Co-operation Department, Junior Engineer, Industries Extension Officer etc., who have no separate establishments of their own, their pay and allowances shall be included in the establishment bills of their Controlling authority.
NOTE.—(iii) The pay and allowances of Policemen and Sub Inspector of Police should be included in the establishment pay bills of the concerned Superintendent of Police.
NOTE.—(iv) The claims on account of pay and allowances of the Non-gazetted personnel should be deemed to arise at the station where the drawing officer who draws the claims is stationed.
NOTE.—(v) The aforesaid provision and note (i) to (iii) above apply only for the drawal of pay and allowances of the concerned persons and do not extend to the drawal of Travelling Allowance claims for which the provision of rule 178 Kerala Treasury Code Volume I shall apply.
(b) Form T.R. 51 shall be used for bills for the pay, fixed allowances and leave salaries of Non-gazetted government servants drawn by the head of the office for disbursement to them. *A single bill shall be prepared in three parts for the following classes, if it exists:—
(i) Permanent Establishment.
(ii) Temporary Establishment.
(iii) Establishment for whom no service books are maintained.
This amendment shall be deemed to have come into force with effect from 1st April, 1980.
With the exceptions mentioned in Rule 171, the name of every substantive, officiating or temporary government servant on whose behalf a claim is made shall be shown in column (2) against his post in column (1). Against each temporary post the number and date of the order sanctioning it and the name of the authority which passed the order shall be entered. The rate of pay, etc., claimed shall be shown against each name in column (2). If the payment of any claim for the month to which the bill relates if postponed, it shall not be omitted from the bill, but the amount of each claim held over for future payment shall be noted in red ink in the appropriate columns (3) to (6) and ignored when totalling the bill. When pay, etc., is claimed only for part of the month, the number of days, for which it is claimed shall be entered either against the government servant’s name or in a note at the foot of the page. The part of a bill relating to each section (See Article 86 of the Kerala Financial Code) shall be marked off in red ink. The component items of an establishment bill shall be checked, and the total shown in the bill shall also be checked by adding up the items. If the bill relates to a small establishment the drawing officer shall either check it himself, or have it checked by a gazetted government servant under his order, before he signs it. If the bill relates to a large establishment, the drawing officer shall ensure that the whole bill is thoroughly checked by someone other than the clerk who prepared it, and shall himself check a part of the bill or arrange for a gazetted government servant to do so, before he signs it.
*NOTE. 1— In the case of non-gazetted officers, the drawing officers who are authorised to draw pay and allowances of the establishment in accordance with sub rule (a) of rule 169 are empowered to draw the pay and allowances of their establishment provisionally upto a period of 3 months, after the expiry of sanction to the posts at the same rate as they were drawing in these posts pending sanction for the continuance of the posts on the basis of a certificate in Form T.R. 113 being attached to the pay bill. In such cases where provisional payment is authorised, the fact should be noted both in the office copy and fair copy of the pay bill. When the sanction for the continuance of temporary posts is received, the number and date of Government Orders should be noted in red ink in the office copy of the pay bill and attested by the Drawing Officer. It shall be the responsibility of the drawing officer concerned to intimate the fact of provisional payment immediately to the higher authorities for obtaining sanction for the continuance of temporary posts in such cases.
Exception — The pay and allowances (including leave salary and travelling allowances) of the following classes of officers shall be drawn separately in the form provided for gazetted officers instead of being included in the pay bill of the establishment. But they should be treated for purposes of audit, etc., as other non-gazetted officers:-
(1) Supervisors, Junior Engineers, Head Draftsman and Overseers of the Public Works Department.
(2) Rangers and Deputy Rangers of the Forest Department.
(3) Inspectors of Co-operative Societies.
(4) [Deleted]
[G.O.(P) 130/82/Fin., dated 22nd March, 1982]
(5) Superintendents of Rescue Homes and the Assistant Superintendent, Rescue Home, Ernakulam.
(6) Sub Inspector of Police.
(7) Inspectors of Plantations.
(8) Sub Officers of Fire Force Department.
(9) Overseers of Rural Housing Cells of the Village Housing Project Scheme one for each district.
(10) Industrial Extension Officers.
(11) Claim Inspectors working in the accident Insurance Branch of the State Insurance Department.
(12) Junior Electrical Inspectors of the Electrical Inspectorate.
However, the bills for pay and fixed allowances of each of the above officers should be countersigned before payment by a gazetted officer in control over him; or by the head of the department, at the discretion of the latter and the traveling allowance bills should be countersigned by the controlling offices referred to in Rule 113 of Part II of the Kerala Service Rules.Copies of all orders of appointment, promotion, transfer or leave of the above classes of officers should be sent to the Accountant General.
*NOTE. 2 —The stipend and kit allowance payable to Sub Inspector Cadets who are undergoing training in Police Training College shall be drawn consolidated in establishment pay bills on the basis of an attendance statement prepared under due attestation of the Principal, Police Training College and disbursed on proper acquittance through the Inspector, Training Team.
*NOTE—3 The shift allowance payable to the staff of the Printing and Stationery Department shall be drawn in Form
T.R. 51A.
(c) The leave salary of a non-gazetted government servant on leave cannot be drawn in India, except over the signature of the head of his office; and the latter is responsible for any overcharge.
The leave salary of a non-gazetted government servant holding a permanent post in one office and officiating in a post in another office may be drawn at the office from which he proceeded on leave, if he would have continued in that office but for his leave and is expected to return to it on its expiry. No last pay certificate should be issued in such cases but the fact of the government servant having gone on leave should, however, be intimated to the head of the first office so that he can show the necessary arrangements in the absentee statements of his office. The bills in which leave salary is drawn should also indicate the permanent post on which the absentee holds a lien to facilitate correct classification of leave salary.
In the case of a non-gazetted officer whose substantive appointment is not a local appointment, but simply that of a member of a State staff, leave allowances should be drawn either at the place where the office of the head of his department is located, by the head of his department or at the place where his salary was last disbursed and in the latter case, if he was not himself the head of an office, he should be regarded as attached to the office in which he was last employed, and the head of that office should draw the leave allowances and he regarded as responsible for over charges.
171. The names of government servants of the following classes may be omitted from pay bills :—
(i) Government servants for whom service books are not required to be maintained (Vide Rule 172 of Part III of the Kerala Service Rules.)
(ii) All government servants in last grade service.
Each bill from which names have been omitted in accordance with the rule shall contain sufficient information to enable the treasury and the Accountant General to apply the necessary arithmetical checks and the drawing officer shall certify on it as follows:—
“Certified that every government servant on whose behalf pay or leave salary is claimed in this bill has actually been on duty or on authorised leave, as the case may be, during the month for the period on account of which his pay or leave salary is claimed and that full details of the names of the government servants concerned and the emoluments drawn for them working upto the total included in this bill have been duly shown in the office copy”.
The government may in consultation with the Accountant General extend the provisions of this rule to other specified classes of establishments, when the entry of names in the bills is not essential for audit purposes.
Claims on behalf of government servants whose names are omitted from a bill under this rule shall not be included in a single item except so far as they are identical in all respects. For example, a claim for the whole month for five Head Constables each of whom draws a pay of ₹57 a month may be entered as a single item. Claims on behalf of government servants with different designations or government servants who have the same designation but draw pay at different rates or for different periods shall always be shown separately.
432. (a) The head of an office is personally responsible for all moneys drawn as pay, leave salary, allowances, etc., on an establishment bill signed by him or on his behalf until he has paid them to the persons who are entitled to receive them and has obtained their dated acknowledgments duly stamped when necessary. These acknowledgments shall be taken as a rule on the office copy of the bill. When the head of the office concerned considers that an establishment is so large or scattered that the payee's acknowledgments cannot, without undue inconvenience, be obtained on the office copy of the bill, he shall maintain a separate acquittance roll in Form T.R. 95 and obtain the payees' acknowledgments in it.
The leave salary of a non-gazetted government servant who is on leave in India shall be drawn in the district in which he was last on duty and he must make his own arrangements for having it remitted to him, when necessary. As an exception to the procedure prescribed in the preceding paragraph, when a government servant is on casual leave or other leave, any moneys due to him may be remitted by postal money order at his expense, if he has made a written request for this to be done, in that case, the receipt given by the Post Office and the payees' receipt shall be attached to the office copy of the bill or to the acquittance roll, as the case may be. Alternatively, a government servant who is on casual or other leave may make a written request that any money due to him be paid to a specified government servant belonging to the same office; payment shall then be made accordingly, provided that the Government servant nominated produces an acknowledgment signed by the absentee (and stamped when the amount exceeds ₹20) and that the disbursing officer is satisfied that the absentee's written request and acknowledgment of the payment may be accepted. *The government servant who receives the moneys shall sign on the back of the absentee's acknowledgment in token of his having received the moneys on the absentee's behalf. The acknowledgment shall be attached to the office copy of the bill or to the acquittance roll, as the case may be, and the remark "Separate receipt attached" shall be entered in the appropriate place in the office copy of the bill or in the receipt column of the roll. Any such payment is made entirely at the risk of the government servant to whom the amount is due, and no claim shall lie against the Government under any circumstances on account of any loss which he may suffer in connection with it.
**For the disbursement of the pay and allowances etc. due to non- gazetted Government Servants on tour or on camp or working at out of the way places other than the headquarters of the drawing officer, any one of the following methods may be adopted at the written request of such Government Servants, namely:-
(i) remittance to the camp by postal money order at the cost of the Government;
(ii) remittance to the camp by a Reserve Bank of India draft (to be sent by registered post) provided the Government Servant gives an acknowledgment signed by him (and duly stamped when necessary) along with the request to make such remittance to camp; and
(iii) payment to another employee of the same office as specified in the request provided that the employee produces an acknowledgment signed by the absentee (and stamped when necessary).
NOTE - In case of remittances made by draft under the method (ii) above an acknowledgment of the draft should be obtained from the payee and filed in serial order.
If a government servant who is entitled to receive any moneys drawn from the treasury on his behalf fails to claim payment in person or in accordance with preceding paragraph before the end of the month in which they are so drawn the moneys drawn for him shall ordinarily be refunded by short drawal in the next bill, and drawn afresh when he claims them, if the rules regarding arrear claims permit it. When the drawing officer considers that the earlier refunding of any such moneys would cause undue inconvenience, he may retain them for any period not exceeding three months, but he will continue to be held personally responsible for them and must make satisfactory arrangements for keeping them safely. Undisbursed pay, allowances and leave salary shall not, under any circumstances, be placed in deposit.
NOTE - Notwithstanding anything contained in this rule, Government may, in special circumstances authorize payment of such part of the claim of a government servant, who does not draw his own bills, to be made to a person and to the extend, as may specifically be so asked for, in writing, in this behalf by the government servant concerned. In such a case, the receipt given by the person so authorized to receive the sum specified, shall constitute a valid acquittance for the amount paid to him and the receipt for the balance only, if any, when paid shall be obtained from the government servant concerned.
(b) As far as possible, a clerk who has helped to prepare a bill for establishment pay, etc., shall not be allowed to have anything to do with the disbursement of the pay, etc.
(c) A large office in which it would be inconvenient to watch the disposal of undisbursed pay and allowances through the office copies of bills or the acquittance roll shall maintain a register in Form T.R. 22 for the purpose. The same register shall also be used, when necessary, for watching the disposal of the undisbursed balances, if any, of amounts drawn on contingent bills in excess of the permanent advance.
(d) The drawing officer shall either check each acquittance roll himself by adding up the items, comparing the total of the corresponding establishment bill and the money received from the treasury, and seeing that any difference between the totals is properly accounted for, or have it so checked by a responsible government servant. The government servant who checks an acquittance roll shall sign a statement at the foot of it as follows:-"Checked in accordance with Rule 432 (d) of the Kerala Treasury Code."
(e) A disbursing officer shall not make the last payment of pay, allowances, etc., to a government servant who is finally leaving the service of the government on retirement, resignation or dismissal or is placed under suspension, until he has satisfied himself that no amount is due to the Government from the government servant. In regard to the recovery of overpayments, etc., from any such government servant, he shall follow the detailed procedure laid down in Rule 212. A disbursing officer shall also not pay, any pay, allowances, etc., due to a deceased government servant to the heirs of the government servant after his death until he has satisfied himself that no amount is due to the government from the government servant.
NOTE - For amounts recovered at the time of disbursement of salary from officials in cash such as recoveries on account of attachment order issued from a co-operative society, a receipt should be given as required in Rule 90 (a).”
It is argued further that the entire prosecution case emanated from Ext.P40 Special Audit Report prepared by PW2. However, Ext.P40 does not show in exact terms by whom the misappropriation was done, though as per Ext.P40(a), the misappropriated amount is shown as Rs.1,84,528/-. It is pointed out that before generation of Ext.P40 Special Audit Report, there was another audit conducted by PW3, as admitted by him, and according to PW3, he did not notice any anomaly in his audit report regarding any misappropriation. Therefore, the prosecution case, mainly relying on Ext.P40 and the evidence of PW2, could not be appreciated to fasten criminal culpability upon the appellant.
7. The learned counsel for the appellant argued further that the appellant was never posted in the Establishment Section and no office order showing such entrustment was produced by the prosecution, though the prosecution relied on Ext.P44, an order issued by PW10, the Joint Director of the Indian System of Medicine, to the effect that the appellant was entrusted with preparation and maintenance of the accounts of the Establishment properly. The learned counsel also submitted that in the instant case, as per Ext.P14, in page No.(1) itself, the details of the Drawing and Disbursing Officers during the alleged period of misappropriation have been highlighted. However, they were not arrayed as accused. Therefore, the appellant, a Clerk of the office, could not be fastened with criminal liability on his shoulder without the junction of other responsible persons. The learned counsel also drew the attention of this Court to the evidence of PW1 to PW17 to contend that the allegation of misappropriation at the instance of the appellant could not be found from their evidence, and the prosecution miserably failed to prove the allegations beyond reasonable doubt. Apart from that, it is further submitted that, in this case, no prosecution sanction was obtained under Section 197 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for short) to prosecute the appellant for the IPC offences alleged, though the prosecution has a case that cognizance for the offences under the PC Act were taken when the appellant was not in service requiring sanction under Section 19 of the PC Act. He also pressed for interference in the sentence, in the event of confirmation of the conviction otherwise to run the sentences in each cases concurrently.
8. The learned counsel for the appellant placed a tabular form, showing the amounts, with necessary details of the exhibits, to see the alleged misappropriation easily and the same is reproduced as under:
9. Regarding the necessity of prosecution sanction, the learned counsel placed four decisions, viz, Ajaynath v. N.Shajitha Beevi, (2025 KHC 295), Venkiteswara Babu v. State of Kerala (2025 KHC 1103), Jinu V.T. v. State of Kerala (2025 KHC 438) and Abdul Rasheed (Dr.) v. State of Kerala (2024(2) KHC 626). In Jinu V.T. 's case (supra), this Court taken the view that sanction under Section 197 of Cr.P.C. is not necessary as the allegations of insulting and intimidating a member of the Scheduled Caste community and fabricating records to show conduct of a meeting are not matters that come within the official duties of a public servant. In Venkiteswara Babu’s case (supra) , this Court taken the view that offence of criminal misconduct by a public servant is established when same ingredients of criminal breach of trust and misappropriation required for Section 409 of IPC are proved, namely entrustment of property to the public servant in his official capacity and dishonest misappropriation or conversion of that property and prosecution successfully proved both elements through documentary and oral evidence.
10. Whereas the learned Special Public Prosecutor supported the prosecution case and, according to him, going by the evidence of PW3, he had stated that he did not examine the amounts disbursed during the audit and the allegation now raised by the prosecution regarding misappropriation is confined to the disbursement of the amount alone. Therefore, the learned Special Public Prosecutor pressed for dismissal of this appeal.
11. Having appraised the rival contentions, the questions arise for consideration are:
(1) Whether the Special Court went wrong in finding that the accused/appellant committed the offence punishable under Section 13(1)(c) r/w.13(2) of the PC Act in C.C.No.20/2009?
(2) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 13(1)d) r/w. 13(2) of the PC Act in C.C.No.20/2009?
(3) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 409 of IPC in C.C.No.20/2009?
(4) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 468 of IPC in C.C.No.20/2009?
(5) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 477A of IPC in C.C.No.20/2009?
(6) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 471 of IPC in C.C.No.20/2009?
(7) Whether the Special Court went wrong in finding that the accused/appellant committed the offence punishable under Section 13(1)(c) r/w.13(2) of the PC Act in C.C.No.21/2009?
(8) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 13(1)d) r/w. 13(2) of the PC Act in C.C.No.21/2009?
(9) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 409 of IPC in C.C.No.21/2009?
(10) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 468 of IPC in C.C.No.21/2009?
(11) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 477A of IPC in C.C.No.21/2009?
(12) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 471 of IPC in C.C.No.21/2009?
(13) Whether the Special Court went wrong in finding that the accused/appellant committed the offence punishable under Section 13(1)(c) r/w.13(2) of the PC Act in C.C.No.22/2009?
(14) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 13(1)d) r/w. 13(2) of the PC Act in C.C.No.22/2009?
(15) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 409 of IPC in C.C.No.22/2009?
(16) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 468 of IPC in C.C.No.22/2009?
(17) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 477A of IPC in C.C.No.22/2009?
(18) Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 471 of IPC in C.C.No.22/2009?
(19) Whether the verdict impugned would require any interference?
(20) Order to be passed.
12. Point Nos.1 to 20:
As regards to the contention raised by the learned counsel for the appellant that the appellant was not the person in charge of the Accounts Section, as the prosecution miserably failed to produce the document in support of the same, in paragraph No.25, the learned Special Judge given emphasis to Ext.P44, proved through PW10. The learned Special Public Prosecutor also given emphasis to Ext.P44 to rebut the contention raised by the learned counsel for the appellant and submitted that, apart from Ext.P44, PW5 to PW9 also deposed that it was the accused who held the post of Accounts Section, encashed the money and disbursed the same, though the Disbursement Officers had drawn the amounts as per the bills prepared by the accused. On scanning the evidence of PW10, along with Ext.P44, the same would depict that the appellant/accused held the post of L.D. Clerk in Government District Ayurveda Hospital, Varkala, and he also held the charge of Establishment section which would deal with preparation of bills, withdrawal of money and disbursement of the same. Be it so, the prosecution successfully proved the official position of the appellant/accused in the above line and the contra contention raised by the appellant/accused is not acceptable.
13. Regarding the allegations, the finding of the learned Special Judge could be gathered from page No.26 to 28 and the same are extracted as under:
“26. The evidence of Pws.2, 5 and 14 coupled with Ext.P40 demonstrates that the accused had falsely prepared six bills, namely, bill Nos.88/94-95 for 32,510/-, 97/94-95 for ₹42,477, 44/95-96 for ₹45,441/-, 51/95-96 for ₹53,589/-, 60/95-96 for ₹49,749/-, and 62/95-96 for ₹54,839/-, during the period from 12.9.1994 to 29.8.1995. Ext.P23 shows that the said bills were cashed. Exts.P4 and P6 demonstrate that the amounts covered by the said bills were drawn from the treasury. The evidence of PW2 and Ext.P40 show that an excess amount of ₹40/-, ₹1,466/-, ₹3,528/-, ₹5,888/-, ₹5,203/- and ₹4,762/- were drawn from the treasury under the aforesaid six bills. The total excess amount withdrawn from the treasury under the aforesaid six bills during the aforesaid period is ₹20,887/-. PW5 had been the Chief Medical Officer during the said period. It has come out in evidence that while preparing the aforesaid bills, the accused falsely included the amount in the bills and thereafter he dishonestly and fraudulently misappropriated the said excess amount making false entries in cash books, acquittance roll registers, pay bill registers, treasury bill books etc. The excess amount was drawn from the treasury in the names of the officers who were not working in the said hospital when the bills were prepared or in the names of the officers who were not entitled to get the amount. When each individual amount drawn from the treasury under the bills was totalled by the audit party the withdrawal of the excess amount from the treasury came to light.
27. The evidence of Pws. 2, 5, 6 and 14 coupled with Ext.P40 shows that the accused had falsely prepared 14 bills, namely, bill Nos. 75/1995-96 for ₹46,197/- 83/95-96 for ₹41,492/-, 99/95-96 for ₹45,215/-, 106/95-96 for ₹49,969/- 117/95-96 for ₹55,338/-, 130/95-96 for ₹53,052/- 1/96-97 for ₹44,960/-, 17/96-97 for ₹51,752/-, 27/96-97 for ₹70,547/-, 44/96-97 for ₹58,854/-, 47/96-97 for ₹55,413/-, 55/96-97 for ₹66,252/-, 56/96-97 for ₹44,155/-and 71/96-97 for ₹58,151/- during the period from 28.9.1995 to 27.9.1996. Exts.P23 and P24 show that the aforesaid bills were cashed. Exts.P6 and P8 illustrate that the amounts covered by the said bills were drawn from the treasury. The evidence of PW2 and Ext.P40 show that an excess amount of ₹5,271/-, ₹5,520/-, ₹998/-, ₹4,999/-, ₹5,224/-, ₹5,641/-, ₹5,323/-, ₹2,910/-, ₹5,858/-, ₹6,578/- ₹4,780/- ₹6,760/-, ₹6/- and ₹4,319/- were drawn from the treasury under the aforesaid 14 bills. The total excess amount drawn from the treasury under the aforesaid bills during the aforesaid period is ₹64,187/-. PW5 and CW11 had been the Chief Medical Officers during the said period. The evidence shows that the accused falsely included the excess amount in the aforesaid 14 bills and thereafter he dishonestly and fraudulently misappropriated the excess amount making false entries in cash books, acquittance roll registers, pay bill registers, treasury bill books etc. The excess amounts were drawn from the treasury in the names of the officers who were not working in the said hospital when the bills were prepared or in the names of the officers who were not entitled to get the amount. When each individual amount drawn from the treasury under the aforesaid bills was totalled by the audit party the withdrawal of the excess amount from the treasury came to light.
28. The evidence of PWs 2, 5, 6, 7 and 14 coupled with Ext.P40 shows that the accused had prepared another 14 false bills, namely, bill Nos.81/1996-97 for ₹59,652/-, 94/96-97 for ₹55,099/-, 103/96-97 for ₹61,279/-, 114/96-97 for ₹67,315/-, 123/96-97 for ₹65,193/-, 1/97-98 for ₹60,417/-, 9/97-98 for ₹65,001/-, 15/97-98 for ₹65,492/-, 28/97-98 for ₹70,884/-, 36/97-98 for ₹54,081/-, 42/97-98 for ₹73,286/-, 44/97-98 for ₹7,600/-, 45/97-98 for ₹43,291/-, and 51/97-98 for ₹58,952/- during the period from 2.11.1996 to 3.10.1997. Exts.P24 and P25 show that the aforesaid 14 bills were cashed. Exts.P8 and P9 show that the amounts covered by the said bills were drawn from the treasury. The evidence of PW2 and Ext.P40 show that an excess amount of ₹7,157/-, ₹7,114/-, ₹6,969/-, ₹7,784/-, ₹7,205/-, ₹7,614/-, ₹7,724/-, ₹7,076/-, ₹9,921/-, ₹8,226/-, ₹11,447/-, ₹800/-, ₹2,550/- and ₹7,767/- were drawn from the treasury under the aforesaid 14 bills. The total excess amount drawn from the treasury under the aforesaid 14 bills during the aforesaid period is ₹99,354/-. PWs 6, 7 and 8 had been the Chief Medical Officers during the said period. It has come out in evidence that while preparing the aforesaid bills, the accused falsely included the excess amount in the aforesaid 14 bills and thereafter he dishonestly and fraudulently misappropriated the said excess amount making false entries in cash books, acquittance roll registers, pay bill registers, treasury bill books etc. The excess amounts were drawn from the treasury in the names of the officers who were not working in the said hospital when the bills were prepared or in the names of the employees who were not entitled to get the amount. When each individual amount drawn from the treasury under the aforesaid bills was totalled by the audit party the withdrawal of the excess amount from the treasury came to light.”
14. Here, the prime witness who supported Ext.P40 Audit Report is PW2. According to her, while she was working as the Accounts Officer in the Directorate of Indian System of Medicines, she along with CW1, CW3 and CW4 had conducted a special audit in the Government District Ayurveda Hospital, Varkkala, and thereafter, she had prepared Ext.P40 special audit report. The audit covered the period from 01.04.1993 to October 1997. The accused had been working as the Clerk at the aforesaid hospital during the relevant period. It was revealed in the audit that a sum of ₹1,84,428/- was misappropriated. The details of the misappropriation confined to 34 establishment bills have been shown in Annexure III contained in page Nos. 13 and 14 of Ext.P40. Ext.P40(a) is the said pages. The first bill in Ext. P40(a) is bonus bill No.88/1994-95. It is written in Ext.P23(a), sheet No.15 in Ext. P23, that the said bill was cashed for ₹32,510/- on 12.09.1994. In Ext.P40(a), sheet No.17 in Ext.P4, it is written that the aforesaid bill was drawn from the treasury. It is written in Ext.P15(a), sheet Nos.2 to 6 in Ext.P15, that a sum of ₹32,510/- was disbursed. However, while conducting the audit, when each individual amount given to the officers was totalled, it was revealed that a sum of ₹32,470/- alone was disbursed. It was also revealed that an excess amount of ₹40/- was drawn from the treasury as per the aforesaid bill. The second bill in Ext.P40(a) is bill No.97/1994-95. It is written in Ext.P23(b), sheet No.19 in Ext.P23, that on 03.10.1994, the said bill for ₹42,477/- was cashed. Ext.P4(b), sheet No.19 in Ext.P4, shows that the amount as per the aforesaid bill was drawn from the treasury. Ext.P15(b), sheet Nos.15 to 20 in Ext.P15, illustrates that the entire amount of ₹42,477/- was disbursed. But, when each individual amount given to the officers was totalled, an amount of ₹41,011/- alone was disbursed. So, it was an excess amount of ₹1,466/- was drawn from the treasury as per the aforesaid bill. In Ext.P40(a), the third bill is bill No.44/1995-96. The said bill is for ₹45,441/-. Ext. P23(c), sheet No.71 in Ext.P23, shows that the amount covered by the said bill was drawn from the treasury. Ext.P15(c), sheet Nos.109 to 112 in Ext.P15, shows that the entire amount of ₹45,441/- was disbursed to the officers. But, when each individual amount given to the officers was totalled, it was revealed that a sum of ₹41,913/- alone was disbursed. It shows that an excess amount of ₹3,528/ was drawn from the Treasury as per the aforesaid bill. In Ext.P40(a), the 4th bill is bill No.51/1995-96. The said bill is for ₹53,589/-. Ext. P23(d), sheet No.75 in Ext.P23, shows that the said bill was cashed. Ext.P6(b), sheet No.12 in Ext.P6, shows that the aforesaid amount of ₹53,589/- was drawn from the treasury. Ext.P15(d), sheet Nos.116 to 119 in Ext. P15, shows that the entire amount of ₹53,589/- was disbursed. However, when each individual amount given to the officers was totalled, it was revealed that a sum of ₹47,701/- alone was disbursed. So, it is apparent that an excess amount of ₹5,888/- was drawn from the treasury under the aforesaid bill. In Ext. P40(a), the 5th bill is bill No.60/1995-96. The said bill is for ₹49,749/-. Ext. P23(e), sheet No.81 in Ext.P23, shows that the said bill was cashed. Ext.P6 (c), sheet No.14 in Ext.P6, shows that the amount covered by the aforesaid bill was drawn from the treasury. Ext.P15(e), sheet Nos.122 to 124 in Ext.P15, shows that the entire amount covered by the said bill was disbursed. But when each individual amount given to the officers was totalled, it was revealed that a sum of ₹44,546/- alone was disbursed to the officers. So, an excess amount of ₹5,203/- was drawn from the treasury as per the aforesaid bill. In Ext.P40(a), the 6th bill is bill No.75/1995-96 and the bill amount is ₹46,197/- Ext.P23(f), sheet No.86 in Ext. P23, shows that the said bill was cashed. Ext. P6(d), sheet No. 16 in Ext. P6, shows that the entire amount covered by the aforesaid bill was drawn from the treasury on 28.09.1995. Ext.15(g), sheet Nos.136 to 139 in Ext.P15, shows that the entire amount covered by the said bill was disbursed to the officers. But when each individual amount given to the officers was totalled, it was revealed that a sum of ₹40,926/- alone was disbursed to the officers. So, an excess amount of ₹5,271/- was drawn from the treasury as per the aforesaid bill. In Ext.P40(a), the 7th bill is bill No.83/95-96 and the amount covered by the said bill is ₹41,492/-. Ext.P23(g), sheet No.89 in Ext. P23, shows that the said bill was cashed Ext. P6(e), sheet No.17 in Ext.P6, shows that the entire amount covered by the aforesaid bill was drawn from the treasury. Ext.P15(h), sheet Nos.143 to 145 in Ext.P15, illustrates that the entire amount covered by the said bill was disbursed. But, when each individual amount given to the officers was totalled, it was revealed that a sum of ₹35,972/- alone was disbursed. So, an excess amount of ₹5,520/- was drawn from the treasury as per the aforesaid bill. The 8th bill in Ext. P40(a) is bill No.99/1995-96, and the amount covered by the said bill is ₹45,215/- Ext.P24(a), sheet No.5 in Ext.P24, shows that the said bill was cashed. Ext.P6(f), sheet No.20 in Ext.P6, shows that the entire amount covered by the said bill was drawn from the treasury on 04.12.1995. Ext.P15(i), sheet Nos.151 to 154 in Ext.P15, shows that the entire amount covered by the said bill was disbursed. But when each individual amount given to the officers was totalled, it was revealed that a sum of ₹44,217/- alone was disbursed. So, an excess amount of ₹998/- was drawn from the treasury as per the aforesaid bill. The 9th bill in Ext.P40(a) is bonus bill No.62/1995-96, and the amount covered by the said bill is ₹54,839/-. Ext.P23(e), sheet No.81 in Ext.P23, shows that the said bill was cashed. Ext.P6(c), sheet No.14 in Ext.P6, shows that the entire amount covered by the bill was drawn from the treasury. Ext. P15(f), sheet Nos. 125 to 129 in Ext.P15, shows that the entire amount covered by the said bill was disbursed. But when each individual amount was totalled, it was revealed that a sum of ₹50,077/- alone was disbursed. So, an excess amount of ₹4,762/- was drawn from the treasury as per the aforesaid bill. In Ext. P40(a), the 10th bill is bill No.106/1995-96, and the amount covered by the said bill is ₹49,969/-. Ext.P24(b), sheet No.8 in Ext. P24, shows that the said bill was cashed. Ext.P6(g), sheet No.21 in Ext.P6, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P15(j), sheet Nos.157 to 160 in Ext.P15, shows that the entire amount of ₹49,969/- was disbursed. But when each individual amount was totalled, it was revealed that a sum of ₹44,970/- alone was disbursed. So, an excess amount of ₹4,999/- was drawn from the treasury as per the aforesaid bill. The 11th bill in Ext.P40(a) is bill No.117/1995-96, and the amount covered by the said bill is ₹55,338/-. Ext.P24(c), sheet No.116 in Ext.P24, shows that the said bill was cashed on 02.02.1996. Ext.P6(h), sheet No.24 in Ext.P6, illustrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P15(k), sheet Nos.167 to 171 in Ext.P15, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was apparent that a sum of ₹50,114/- alone was disbursed. So, an excess amount of ₹5,224/- was drawn from the treasury as per the aforesaid bill. The 12th bill in Ext. P40(a) is bill No.130/1995-96, and the amount covered by the said bill is ₹53,052/-. Ext.P24(d), sheet No.20 in Ext.P24, shows that the said bill was cashed on 02.03.1996. Ext.P6(i), sheet No.25 in Ext.P6, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P15(1), sheet Nos.175 to 177 in Ext.P15, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was seen that a sum of ₹47,411/- alone was disbursed. So, an excess amount of ₹5,641/- was drawn from the treasury as per the aforesaid bill. The 13th bill in Ext.P40(a) is bill No.1/1996-97, and the amount covered by the said bill is ₹44,960/-. Ext.P24(e), sheet No.27 in Ext.P24, shows that the said bill was cashed. Ext.P8(a), sheet No.1 in Ext.P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P16(a), sheet Nos.1 to 6 in Ext.P16, shows that the entire amount covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹39,637/ alone was disbursed. So, an excess amount of ₹5,323/- was drawn from the treasury as per the aforesaid bill. The 14th bill in Ext.P40(a) is bill No.17/1996-97, and the amount covered by the said bill is ₹51,752/-. Ext.P24(f), sheet No.37 in Ext.P24, shows that the said bill was cashed. Ext.P8(b), sheet No.5 in Ext.P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext. P16(b), sheet Nos.18 to 23 in Ext.P16, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was found that a sum of ₹48,842/- alone was disbursed. So, an excess amount of ₹2,910/- was drawn from the treasury as per the aforesaid bill. The 15th bill in Ext.P40(a) is bill No. 27/1996-97, and the amount covered by the said bill is ₹70,547/-. Ext.P24(g), sheet No.45 in Ext. P24, shows that the said bill was cashed. Ext. P8(c), sheet No.7 in Ext.P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P16(c), page Nos.36 to 41 in Ext.P16, shows that the entire amount covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹64,789/- alone was disbursed. So, an excess amount of ₹5,858/- was drawn from the treasury as per the aforesaid bill. The 16th bill in Ext.P40(a) is bill No.44/1996-97, and the amount covered by the said bill is ₹58,854/-. Ext. P24(h), sheet No.52 in Ext.P24, manifests that the said bill was cashed. Ext.P8(d), sheet No.8 in Ext. P8, demonstrates that the entire amount covered by the said bill was drawn from the treasury. It is evident from Ext.P16(d), sheet Nos. 48 to 53 in Ext. P16, that the entire amount covered by the said bill was disbursed. However, when each individual amount was totalled, it was apparent that a sum of ₹52,276/ alone was disbursed. So, an excess amount of ₹6,578/- was drawn from the treasury as per the aforesaid bill. The 17th bill in Ext.P40(a) is bill No. 47/1996-97, and the amount covered by the said bill is ₹55,413/-.Ext.P24(i), sheet No.56 in Ext. P24, shows that the sail bill was cashed. Ext.P8(e), sheet No.10 in Ext.P8, manifests the entire amount covered by the said bill was drawn from the treasury. Ext.P16(e), sheet Nos 54 to 60 in Ext.P16, demonstrates that the entire amount of ₹55,413/- covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹50,633/- alone was disbursed. So, an excess amount of ₹4,780/-was drawn from the treasury as per the aforesaid bill. The 18th bill in Ext.P40(a) is bill No.55/1996-97, and the amount covered by the said bill is ₹66,252/-. Ext.P24(j), sheet No.61 in Ext.P24, illustrates that the said bill was cashed. Ext.P8(f), sheet No.12 in Ext.P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P16(f), sheet Nos.67 to 71 in Ext.P16, illustrates that the entire amount of ₹66,252/ covered by the said bill was disbursed. But, when each individual amount was totalled, it was apparent that a sum of ₹59,492/- alone was disbursed. So, an excess amount of ₹6,760/- was drawn from the treasury as per the aforesaid bill. The 19th bill in Ext.P40(a) is bill No.56/1996-97, and the amount covered by the said bill is ₹44,155/-. Ext.P24(j), sheet No.61 in Ext. P24, shows that the said bill was cashed. Ext. P8(f), sheet No. 12 in Ext. P8, demonstrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P16(g), sheet Nos.72 to 76 in Ext.P16, shows that the entire amount of ₹44,155/- covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹44,149/- alone was disbursed. So, an excess amount of ₹6/- was drawn from the treasury as per the aforesaid bill. The 20th bill in Ext. P40(a) is bill No.71/1996- 97, and the amount covered by the said bill is ₹58,153/-. Ext.P24(k), sheet No.67 in Ext. P24, shows that the said bill was cashed. Ext.P8(g), sheet No. 14 in Ext. P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext. P16(h), sheet Nos.86 to 90 in Ext.P16, demonstrates that the entire amount of ₹58,153/- covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹53,834/- alone was disbursed. So, an excess amount of ₹4,319/- was drawn from the treasury as per the aforesaid bill. The 21st bill in Ext.P40(a) is bill No.81/1996-97, and the amount covered by the said bill is ₹59,682/-. Ext.P24(I), sheet No.74 in Ext.P24, shows that the said bill was cashed. Ext. P8(h), sheet No.16 in Ext.P8, illustrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P16(i), sheet Nos.95 to 100 in Ext.P16, shows that the entire amount of ₹59,682/- covered by the said bill was disbursed. However, when each individual amount was totaled it was revealed that a sum of ₹52,525/- alone was disbursed. So, an excess amount of ₹7,157/- was drawn from the treasury as per the aforesaid bill. The 22nd bill in Ext.P40(a) is bill No.94/1996-97, and the amount covered by the said bill is ₹55,099/-. Ext.P24(m), sheet No.80 in Ext.P24, illustrates that the said bill was cashed. Ext.P8(i), sheet No.18 in Ext.P8, manifests that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(a), sheet Nos.4 to 7 in Ext.P17, shows that the entire amount of ₹55,099/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was apparent that a sum of ₹47,985/- alone was disbursed. So, an excess amount of ₹7,114/- was drawn from the treasury as per the aforesaid bill. The 23rd bill in Ext.P40(a) is bill No.103/1996-97, and the amount covered by the said bill is ₹61,279/-. Ext.P24(n), sheet No.83 in Ext.P24, shows that the said bill was cashed. Ext.P8(j), sheet No.19 in Ext. P8, illustrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(b), sheet Nos. 12 to 16 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was found that a sum of ₹54,310/- alone was disbursed. So, an excess amount of ₹6,969/- was drawn from the treasury as per the aforesaid bill. The 24th bill in Ext.P40(a) is bill No.114/1996-97, and the amount covered by the said bill is ₹67,315/-. Ext.P24(o), sheet No.90 in Ext. P24, shows that the said bill was cashed. Ext.P8(k), sheet No.22 in Ext.P8, illustrates the entire amount covered by the said bill was drawn from the treasury. Ext. P17(c), sheet Nos. 23 to 28 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹59,531/- alone was disbursed. So, an excess amount of ₹7784/- was drawn from the treasury as per the aforesaid bill. The 25th bill in Ext.P40(a) is bill No.123/1996-97, and the amount covered by the said bill is ₹65,193/-. Ext.P25(a), sheet No.15 in Ext.P25, shows that the said bill was cashed. Ext.P8(1), sheet No.23 in Ext.P8, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(d), sheet Nos.30 to 35 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹57,988/- alone was disbursed. So, an excess amount of ₹7,205/- was drawn from the treasury as per the aforesaid bill. The 26th bill in Ext.P40(a) is bill No.1/199-98, and the amount covered by the said bill is ₹60,417/-. Ext.P25(b), sheet No.33 in Ext. P25, shows that the said bill was cashed. Ext.P9(a), sheet No.3 in Ext.P9, shows that the entire amount covered by the said bill was drawn from the treasury. Ext. P17(e), sheet Nos.38 to 42 in Ext.P17, shows that the entire amount of ₹60,417/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹52,803/- alone was disbursed.
So, an excess amount of ₹7,614/- was drawn from the treasury as per the aforesaid bill. The 27th bill in Ext.P40(a) is bill No.9/1997-98, and the amount covered by the said bill is ₹65,001/-. Ext.P25(c), sheet No.45 in Ext.P25, shows that the said bill was cashed. Ext.P9(b), sheet No.6 in Ext.P9, shows that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(f), sheet Nos.54 to 58 in Ext.P17, shows that the entire amount of ₹65,001/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was found that a sum of ₹57,277/-alone was disbursed. So, an excess amount of ₹7,724/- was drawn from the treasury as per the aforesaid bill. The 28th bill in Ext.P40(a) is bill No.15/1997-98, and the amount covered by the said bill is ₹65,492/-. Ext.P25(d), sheet No.53 in Ext.P25, shows that the said bill was cashed. Ext.P9(c), sheet No.7 in Ext.P9, illustrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(g), sheet Nos.63 to 67 in Ext.P17, shows that the entire amount of ₹65,492/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹58,416/- alone was disbursed. So, an excess amount of ₹7,076/ was drawn from the treasury as per the aforesaid bill. The 29th bill in Ext.P40(a) is bill No.28/1997-98, and the amount covered by the said bill is ₹70,884/-. Ext.P25(e), sheet No.65 in Ext.P25, shows that the said bill was cashed. Ext.P9(d), sheet No.18 in Ext.P9, manifests that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(h), sheet Nos.75 to 78 in Ext.P17, shows that the entire amount of ₹70,884/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹60,963/-alone was disbursed. So, an excess amount of ₹9,921/- was drawn from the treasury as per the aforesaid bill. The 30th bill in Ext.P40(a) is bill No.36/1997-98, and the amount covered by the said bill is ₹54,081/-. Ext. P25(f), sheet No.75 in Ext.P25, shows that the said bill was cashed. Ext.P9(e), sheet No.10 in Ext.P9, demonstrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(i), sheet Nos.82 to 84 in Ext.P17, shows that the entire amount of ₹54,081/- covered by the said bill was disbursed. But, when each individual amount was totalled, it was found that a sum of ₹45,855/- alone was disbursed. It shows that an excess amount of ₹8,226/- was drawn from the treasury as per the aforesaid bill. The 31st bill in Ext.P40(a) is bill No.42/1997-98, and the amount covered by the said bill is ₹73,286/-. Ext.P25(g), sheet No.79 in Ext. P25, shows that the said bill was cashed. Ext. P9(f), sheet No.12 in Ext.P9, demonstrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(j), sheet Nos.88 to 92 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. However, when each individual amount was totalled, it was revealed that a sum of ₹61,839/- alone was disbursed. So, an excess amount of ₹11,447/- was drawn from the treasury as per the aforesaid bill. The 32nd bill in Ext.P40(a) is bill No.44/1997-98, and the amount covered by the said bill is ₹7,600/-. Ext.P25(h), sheet No.79 in Ext.P25, shows that the said bill was cashed. Ext.P9(g), sheet No.14 in Ext.P9, demonstrates that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(k), sheet Nos.94 to 98 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was apparent that a sum of ₹6,800/- alone was disbursed. It shows that an excess amount of ₹800/- was drawn from the treasury as per the aforesaid bill. The 33rd bill in Ext.P40(a) is bill No.45/1997-98, and the amount covered by the said bill is ₹43,291/-. Ext.P25(h) shows that the said bill was cashed. Ext.P9(g) manifests that the entire amount covered by the said bill was drawn from the treasury. Ext.P17(1), sheet Nos.99 to 104 in Ext.P17, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹40,741/- alone was disbursed. It shows that an excess amount of ₹2,550/- was drawn from the treasury as per the aforesaid bill. The 34th bill in Ext. P40(a) is bill No.51/1997-98, and the amount covered by the said bill is ₹58,952/-. Ext.P25(i), sheet No.89 in Ext.P25, shows that the said bill was cashed. Ext.P9(b), sheet No.15 in Ext.P9, manifests that the entire amount covered by the said bill was drawn from the treasury. Ext.P18(a), sheet Nos.4 to 8 in Ext.P18, shows that the entire amount covered by the said bill was disbursed. But, when each individual amount was totalled, it was revealed that a sum of ₹51,185/- alone was disbursed. It shows that an excess amount of ₹7,767/- was drawn from the treasury as per the aforesaid bill. The excess amount drawn from the treasury under six bills, namely, bill Nos.88/1994-95, 97/1994-95, 44/1995-96, 51/1995-96, 60/1995-96 and 62/1995-96 is ₹20,887/-, and the said amount was drawn during the period when PW5 worked as Chief Medical Officer. The excess amount drawn from the treasury as per Bill Nos. 75/1995-96, 83/1995-96, 99/1995-96, 106/1995-96, 117/1995-96, 130/1995-96, 1/1996-97, 17/1996-97, 27/1996-97, 44/1996-97, 47/1996-97, 55/1996- 97, 56/1996-97, and 71/1996-97 is ₹64,187/-. The excess amount drawn from the treasury under the bill Nos. 81/1996-97, 94/1996-97, 103/1996-97, 114/1996-97, 123/1996-97, 1/1997-98, 9/1997-98, 15/1997-98, 28/1997-98, 36/1997-98, 42/1997-98, 44/1997-98, 45/1997-98 and 51/1997-98 is ₹99,454/-. The names and period of the Chief Medical Officers and the excess amount drawn during the period of time when each Medical Officer held the post, are mentioned in Annexure-IV to Ext. P40. In Ext.P40, it is stated that an excess amount of ₹11,447/- was withdrawn from the treasury under bill No.42/1997-98. However, during the investigation into this case, PW2 was told by the police that an excess amount of ₹11,547/- was withdrawn from the treasury as per the aforesaid bill. The salary and the deduction particulars of each staff member are shown in Exts. P19 to P21.
15. Apart from the evidence of PW2, the evidence of PW4 to PW13 were also relied on by the learned Special Judge. The evidence of PW4 would show that it was stated in Ext.P36(a), sheet No.8 of Ext.P36, that she was transferred from the office of the accused on 13.11.1996. She deposed that Ext.P41 bill was prepared in the handwriting of the accused. She further deposed that Ext.P41(a), which was sheet No.3 of Ext.P41, shows that a sum of ₹3,110/- in the name of PW4 was included therein, but the said amount was not received by PW4, and that PW4 was not working in the office of the accused when the said bill was prepared. The evidence of PW5 would suggest that the accused was working as clerk at the Establishment section in the office of Government District Ayurveda Hospital, Varkkala, that it is noted in sheet No.63 of Ext.P11 that PW5 had assumed charge of Chief Medical Officer in the aforesaid hospital, and that the accused had been preparing the salary bills and the bills of other benefits of the Non Gazetted Officers working in the aforesaid hospital. The evidence of PW5 further shows that the accused had been writing the bill book, cash book, acquittance register etc., that the accused used to disburse the salary and other benefits drawn from the treasury due to the time constraints of PW5, that PW5 used to verify whether the total amount in the cash book tallied with the total amount in the acquittance register, and that in sheet No.174 of Ext.P15, it was written that PW5 had handed over the charge to CW11 on 29.2.1996. According to PW5, she came to know from the audit report that an excess amount of ₹42,899/- was drawn from the treasury, and the said amount was misappropriated during her tenure as CMO. The evidence of PW6 illustrates that it was written on sheet No.4 of Ext.P8 that PW6 had taken charge of CMO from CW11, that the accused had been in charge of the establishment section, that the accused himself had disbursed the salary and other benefits, and that PW6 had only verified whether the total amount in the cash book tallied with the total amount in the acquittance register. The evidence of PW6 further shows that when audit was conducted by PW2 and others he came to know that an excess amount of ₹75,054/- was drawn from the treasury, and the said amount was misappropriated during the tenure of PW6 as CMO. According to PW6, CW11 who had been working as Chief Medical Officer (CMO) at the Government District Ayurveda Hospital, Varkkala during the period from 29.02.1996 to 13.04.1996 and 24.04.1997 to 20.05.1997, was familiar to him, and an excess amount of ₹18,688/- was drawn from the treasury during the tenure of CW11 as CMO, The evidence of PW6 illustrates that the aforesaid amount of ₹18,688/ was misappropriated, that the accused had been the establishment clerk during the aforesaid period, and that CW11 is unable to come to the court to give evidence due to his illness.
16. The evidence of PW7 would show that it was written on sheet No.41 of Ext.P25 that he had taken charge of CMO from CW11, that the accused had been working as Clerk at the establishment section during the period of PW7 as CMO, and that he had only verified whether the amount shown in the cash book tallied with the amount shown in the acquittance register. According to PW7, Ext.P42 bill was presented in the treasury, when PW7 was the CMO, that Ext.P42 was prepared by the accused, that in sheet No.77 of Ext.P25, it is written that PW7 had handed over the charge of CMO to CW30, that an excess amount of ₹36,670/- was drawn from the treasury and the same was misappropriated during the tenure of PW7 as CMO, and that Ext. P43 bill which was prepared by the accused was presented in the treasury, when PW7 was working as the CMO. The evidence of PW8 would show that in sheet No.77 of Ext. P25, it was written that PW8 had taken charge of CMO, that Ext. P41 bill was presented in the treasury when PW8 was working as the CMO, that Ext.P41 was prepared by the accused, and that on coming to know that there was withdrawal of excess amount from the treasury,PW8 sought explanation from the accused in respect of Ext. P41 bill. The evidence of PW8 further would show that Ext.P41 bill was for the month of September 1997, in which the names of CWs16, 24 and 31 were shown, but they had not worked in the said hospital in the month of September 1997. The evidence of PW8 also would show that the accused did not give explanation, that PW8 came to know that an excess amount of ₹ 800/- and another excess of amount of ₹2,550/- under bill Nos. 44/1997-98 and 45/97-98 had been entered in Ext.P25(h) and the said fact which came to the notice of PW8, was noted down in his handwriting as his remark. According to PW8, the DMO also wrote his remark on Ext.P25(h), and after the verification done by the DMO, the Director suspended the accused. The evidence of PW8 also shows that on 12.11.1997, he had lodged a complaint with Varkkala Police Station and on the basis of that complaint, the police registered a case and subsequently that case was transferred to the Vigilance Police. According to PW8, an excess amount of ₹11,117/- was drawn from the treasury and the said amount was misappropriated during the tenure of PW8.
17. The evidence of PW9 would show that a sum of ₹2,500/- was shown in page No.12 of Ext. P43 as the monthly subscription for his provident fund, but the recovery towards his P.F loan was not shown in the said page, that in Ext. P21(a), sheet No.95 of Ext.P21, his salary details were shown, that in Ext. P21(a) a sum of ₹1,350/- as his recovery of P.F. was also included in the details of the salary for the month of August 1997, and that as per Ext.P17(j) the amount left after deducting ₹1,350/- was given to PW9 as his salary.
According to PW9, Exts.P17, P21 and P43 were prepared by the accused and the accused disbursed the salary to him.
18. The evidence of PW11 demonstrates that Ext.P21(b), sheet No.52 of Ext.P21, contains her salary details, that as per Ext. P21(b) she had received salary up to June 1996 from the office of the aforesaid hospital, and that in Ext.P21(b) her transfer and issuance of LPC were mentioned. The evidence of PW11 also would show that in Ext.P42(a), sheet No.10 in Ext.P42, a sum of ₹2,420/- was shown as her salary, but she did not receive the said amount, and that in Ext.P17(i) her name was not mentioned, but her name and salary of ₹2,243/- were written on the back of sheet No.3 of Ext.P41, and the said entry is Ext.P41(b). According to PW11, her name was not mentioned in Ext.P18(a). The evidence of PW12 illustrates that in Ext.P38(a), sheet No.4 of Ext. P38, her name was shown in the list of sanitation workers, that her transfer from the aforesaid hospital was noted in Ext.P38(a), that in Ext.P41(b) a sum of ₹2,242/- was written in her name, but she did not receive the said amount, that in Ext.P18(a) her name was not written, that in Ext.P42(a), a sum ₹2,353/- was shown as her salary, but she did not receive the said amount, and that in Ext.P17(i) her name was not shown.
19. It is evident from the evidence of PW13 that he had been on half-pay leave during the period from 01.07.1997 to 11.07.1997, and during that period he had been undergoing treatment in the said hospital, that when his salary bill was prepared for the month of July 1997, no order sanctioning the leave was received from the DMO, and so he had no eligibility to claim his salary for the said month, and that in Ext.P38, the last name was the name of PW13 and it was stated therein that PW13 had been on leave. The evidence of PW13 again would show that Ext.P21(c), sheet No.86 of Ext. P21, contains his salary details, that in Ext. P21(c), it was written "want of leave sanction" in the place provided for writing 'pay for 7/97'. In Ext. P42(b), sheet No.9 of Ext. P42, the name of PW13 was included in the list of pharmacists as serial No.2, and a sum of ₹3,221/- was claimed for him. However, PW13 had not received the said amount. The name of PW13 was not shown in Ext.P17(i).
20. PW14 given evidence and supported the prosecution as regards the encashment of the amount from the office. In this case, it could be gathered that the evidence given by PW1, PW5, PW6, PW7 and PW8, supported by Exts.P44 and P10, is that the accused, who had been working as L.D.Clerk in the Establishment Section attached to the office of the Government District Ayurveda Hospital, Varkkala, during the period from May 1993 to October 1997 was responsible for the alleged misappropriation. Thus the finding so entered by the learned Special Judge does not require any interference.
21. To be on the merits of the matter, no doubt, as pointed out by the learned counsel for the appellant, it was the duty of the Drawing and Disbursing Officers to draw and disburse the salary and allowances of the staff. In the instant case, none of the Drawing and Disbursing Officers during the relevant period got arrayed as an accused and therefore, according to the learned counsel for the appellant, without their junction, a clerk who had prepared the bill could not be held culpable for the misappropriation. Here comes the significance of the prosecution case. Here, as per Ext. P40, the special audit report, misappropriation to the tune of Rs.1,84,528/- was found and the responsibility for the misappropriation was shouldered on the appellant on finding that he had prepared the bill, got signatures of the Drawing and Disbursing Officers and he got entrustment of the same, since it has been specifically deposed by PW6, PW7 and PW8 who were the Chief Medical Officers who had signed the 14 bills by which the appellant alleged to have misappropriated the amount that they believed the appellant and signed the bills and in fact, the appellant got encashed the bill and he had misappropriated the same in his custody.
22. That apart, the evidence of PWs 2, 5, 6, 7 and 14, coupled with Ext.P40, would show that the accused had prepared another 14 false bills, namely, bill Nos. 81/1996-97 for ₹59,652/-, 94/96-97 for ₹55,099/-, 103/96-97 for ₹61,279/-, 114/96-97 for ₹67,315/-, 123/96-97 for ₹65,193/-, 1/97-98 for ₹60,417/-, 9/97-98 for ₹65,001/-, 15/97-98 for ₹65,492/-, 28/97-98 for ₹70,884/-, 36/97-98 for ₹54,081/-, 42/97-98 for ₹73,286/-, 44/97-98 for ₹7,600/-, 45/97-98 for ₹43,291/-, and 51/97-98 for ₹58,952/-, during the period from 2.11.1996 to 3.10.1997. Exts. P24 and P25 would show that the aforesaid 14 bills were encashed, while Exts. P8 and P9 show that the amounts covered by the said bills were drawn from the treasury. The evidence of PW2 and Ext.P40 further would show that excess amounts of ₹7,157/-, ₹7,114/-, ₹6,969/-, ₹7,784/-, ₹7,205/-, ₹7,614/-, ₹7,724/-, ₹7,076/-, ₹9,921/-, ₹8,226/-, ₹11,447/-, ₹800/-, ₹2,550/- and ₹7,767/- were drawn from the treasury under the aforesaid 14 bills. The total excess amount drawn from the treasury under the said bills during the aforesaid period comes to ₹99,354/-. PWs 6, 7 and 8 had served as Chief Medical Officers during the relevant period. The evidence on record further would establish that, while preparing the aforesaid bills, the accused had falsely included the excess amounts therein and had thereafter dishonestly and fraudulently misappropriated the said amounts by making false entries in the cash books, acquittance roll registers, pay bill registers, treasury bill books and other relevant records. The excess amounts were drawn from the treasury in the names of officers who were not working in the said hospital at the time of preparation of the bills or in the names of employees who were not entitled to receive the amounts. The fraudulent withdrawal of the excess amounts came to light when the audit party totalled the individual amounts drawn from the treasury under the aforesaid bills.
23. They have deposed specifically that it was the accused who had been preparing the salary bills and the other benefits of the non-gazatted officers working in the aforesaid hospital and the officers, including PW5, only used to verify whether the total amount in each cash book talied with the total amount in the acquittance register. Thus, it appears that none of the Chief Medical Officers, including PW5, had any occasion to verify the falsity of bills, as those duties were done by the appellant and on getting the amount talied and finding the same as genuine, they signed the bills for encashment. Therefore, the learned Special Public Prosecutor is right in contending that, on this premise, the Drawing and Disbursing Officers were not arrayed as accused to be justifiable. As already pointed out, it has come in evidence that the appellant/accused held the post of LD clerk at the Government District Ayurvedic Hospital, Varkala, during the period, and he was entrusted with the preparation of establishment pay bills and proper maintenance of the Government records. Thus, the misappropriation was committed by using forged and falsifying the records and in fact he got entrustment of the same on getting it encashed and in such a case, he is bound to account that how money was spent to wriggle out from the allegation of misappropriation, particularly for the offences punishable under Sections 409 and 477A of IPC.
24. In this connection, it is necessary to refer the ingredients to attract offence under Section 409 of IPC. Section 409 of IPC is extracted as hereunder:
“409. 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 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.”
25. Section 409 is pari materia to Section 316(5) of the Bharatiya Nyaya Sanhita, 2023 (`BNS’ for short) and Section 316(5) of BNS reads as under:
“316(5): Criminal breach of trust: 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 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.”
26. Analysing the ingredients to attract offence under Section 409 of IPC, its applicability is as held by the Apex Court in [(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v. State of Andhra Pradesh, as pointed out by the learned counsel for the petitioner.
27. In Sadhupati Nageswara Rao v. State of Andhra Pradesh’s case (supra), the Apex Court, while upholding the conviction held that, where the appellant, an agent entrusted with the distribution of the rice under the “Food for Work Scheme” to the workers on production of coupons, was charged with misappropriation of 67.65 quintals of rice, the evidence proves that there was entrustment of property to the accused
28. In order to sustain a conviction under section 409 of the IPC, two ingredients are to be proved; namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and (ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC. The basic requirements to bring home the accusation under Section 405 IPC are to prove conjointly; (i) entrustment and (ii) whether the accused was actuated by a dishonest intention or not, misappropriated it or converted it to his own use or to the detriment of the persons who entrusted it, as held by the Apex Court in the decision reported in Sadhupati Nageswara Ra v. State of Andhra Pradesh’s case (supra).
29. The gravamen of the offence under Section 409 of IPC is dishonest intention on the part of the accused but to establish the dishonest intention, it is not necessary that the prosecution should establish an intention to retain permanently, the property misappropriated. An intention, wrongfully to deprive the owner of the use of the property for a time and to secure the use of that property for his own benefit for a time would be sufficient. Section 409 of IPC cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed, is ipso facto, guilty of criminal breach of trust; but something more than that is required to bring home the dishonest intention.
30. Tracing the ingredients of the offence punishable under Section 477A of IPC, Section 477A provides as under:
“Section 477A – Falsification of Accounts : “Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
31. Section 344 of BNS is corresponding to Section 477A of IPC. The same reads as under:
“344. Falsification of accounts:- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
32. The three ingredients to prove the offences are:
(i) That at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity ;
(ii) That he should destroy, alter, mutilate or falsify any book, electronic record, paper, writing, valuable security or account, which belongs to or was in the possession of his employer and
(iii) The act should have been done willfully and with an intention to defraud. To convict a person under section 477A of the IPC, the prosecution has to prove that there was a willful act, which had been made with an intent to defraud and while proving “Intention to defraud”, the prosecution has to further prove the two elements that the act was an act of deceit and it had caused an injury. In the present case, there may be an injury, but there is no deceit.
33. For the offence under Section 477A of IPC, what has got to be proved is twofold viz., that the person who commits the offence is a clerk, officer or servant, and secondly, that there was intent to defraud. It is sufficient, to satisfy the words of the section, to prove that the person charged under this section is one who undertakes to perform and does perform the duties of a clerk or servant whether in fact he is a clerk or servant or not, and though he is under no obligation to perform such duties and receives no remuneration. The emphasis is upon the words "in the capacity of a clerk, officer or servant”.
34. To attract section 477A, the-employee concerned must destroy, alter, mutilate or falsify book or accounts etc, of the employer, inter alia, with intent to defraud. The term "intend to defraud" has already been explained in Section 25 of IPC. It contains two elements, viz., deceit and injury. A person is said to deceive another when by practising suggestio falsi or suppressio veri or both, he intentionally induces another to believe a thing to be true. "Injury" defined in Section 44 of IPC means any harm whatever illegally caused to any person in body, mind, reputation and property. In the decision reported in [1976 CrLJ 913 (SC) : 1976 Cr LR (SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman Singh v. Delhi Administration, the Apex Court held that whenever the words "fraud" or "intent to defraud" or "fraudulently" occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, firstly, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury to a risk of possible injury by means of that deceit or secrecy. Where the accused prepared a false travelling allowance bill, presented it to a sub-treasury and withdrew the amount, it meant securing an advantage by deceitful act and causing corresponding loss to the State. The offence will fall under section 477A and the fact that the accused subsequently paid over the entire amount is not a matter to be considered.
35. Another contention raised by the learned counsel for the appellant/accused is that, in this case, no prosecution sanction obtained under Section 197 of Cr.P.C. to prosecute the appellant/accused for the IPC offences, though sanction under Section 19(1) of PC Act not necessary as the appellant/accused seized to be in service at the time of taking cognizance of the PC Act offences. In support of this contention, he has relied on the decisions of this Court in Ajaynath v. N.Shajitha Beevi, (2025 KHC 295), Venkiteswara Babu v. State of Kerala (2025 KHC 1103), Jinu V.T. v. State of Kerala (2025 KHC 438) and Abdul Rasheed (Dr.) v. State of Kerala (2024(2) KHC 626). In paragraph No.6 of Jinu V.T.’s case (supra), this Court held as under:
“6. According to the learned counsel for the 2nd petitioner, even in cases involving oences under the unamended SC/ST PO Act, prosecution sanction under Section 197 of Cr.P.C. is necessary to prosecute a public servant. In this regard, the learned counsel for the 2nd petitioner placed the decision of the Apex Court reported in 2021 KHC Online 6319 Indira Devi v. State of Rajasthan and Another, where in paragraph No.9, the Apex Court considered the necessity of sanction under Section 197 of Cr.P.C., where oences under Sections 3(1)(4), 3(15), and 3(5) of the SC/ST PO Act were alleged. In paragraph No.9, the Apex Court observed that:
“9. We have given our thought to the submissions of learned counsel for the parties. S.197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the Court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy v. Manmohan Singh (2012 KHC 4072: (2012) 3 SCC 64 : 2012 (1) KHC SN 29: 2012 (1) KLD 327: 2012 (2) SCALE 12 : 2012 (1) KLT SN 90 : AIR 2012 SC 1185 : 2012 CriLJ 1519)]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra v. Dr. Budhikota Subbarao (supra)]. The real question, therefore, is whether the act committed is directly concerned with the official duty.””
Here also, fabricating and falsifying of records could not be held as acts done by the appellant/accused in discharge of his official duties. Thus, sanction under Section 197 of Cr.P.C. is not necessary in this case. It is relevant to note that, if at all it is found that, for want of sanction, the prosecution of the appellant for the IPC offences is bad in law, then also the offences under the PC Act would attract, for which no sanction under Section 19 of the PC Act is required at the time of taking cognizance, as the appellant was not in service. Thus, this contention is set at rest.
36. Thus this Court is of the view that the learned Special Judge rightly entered into the conviction and the same does not require any interference. Coming to the sentence, the same is very reasonable on par with the gravity of the offences and therefore, no interference is required and these criminal appeals fail and are accordingly dismissed.
The separate orders suspending sentence and granting bail to the accused/appellant in all cases stand cancelled and all his bail bonds also stand cancelled.
The accused/appellant is directed to surrender before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, to undergo the sentence, forthwith, failing which, the learned Special Judge is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Enquiry Commissioner and Special Judge, Thiruvananthapuram, for information and compliance.
