Common Judgment:
1. Crl.A. Nos.1563, 1565, 1566, 1567, 1568, 1569, 1570, 1571, 1572, 1573, 1574 and 1575 of 2011 and Crl.A. Nos.1547, 1546, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556 and 1557 of 2011 have been filed under Section 374 of the Code of Criminal Procedure, 1973 [hereinafter referred as 'Cr.P.C' for short], by the 1st and 2nd accused respectively in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the conviction and sentence imposed by the Special Judge against them as per the common judgment dated 27.07.2011. The State of Kerala represented by the Public Prosecutor is arrayed as the sole respondent herein.
2. Heard the learned counsel for the appellants and the learned Public Prosecutor, in detail. Perused the common verdict under challenge, the records of the Special Court as well as the decisions placed by the learned counsel for the appellants.
3. Parties in these appeals shall be referred as ‘accused’ and ‘prosecution’, hereafter.
4. In these matters, the prosecution alleges commission of offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short] as well as under Sections 468, 471, 477A, 409 read with 120B of the Indian Penal Code [hereinafter referred as ‘IPC’ for short], by the accused.
5. The prosecution case in C.C. No.43/2008 is that, accused Nos.1 and 2, who had been working as the cashier and accountant respectively in Foam Mattings (India) Limited, Alappuzha, as such being public servants, hatched criminal conspiracy to misappropriate money from the said Foam Mattings (India) Limited, Alappuzha and in furtherance of the said conspiracy, accused Nos.1 and 2 misappropriated an amount of Rs.22,398.60 during the period from 12-12- 1996 to 24-3-1997 from the fund of Foam Mattings (India) Limited, Alappuzha pertaining to the disbursement of wages to employees for the period from 02-12-1996 to 07-12-1996 and 10-3-1997 to 15-3-1997 and wage arrear vide pay advice No.1823 dated 13-2-1997 and accused Nos.1 and 2, who were entrusted with the cash for payment of wages and salary of employees entered into a criminal conspiracy on or before 12-12-1996 and in pursuance of that conspiracy accused No.1 manipulated and falsified cash voucher Nos.2294, 2296, 3023, 3036, 3051, 3062, 2912, 2913, 2929, 2930, 2938, 2939, 2948, 2953, 2771, 2772, 2781, 2795 and other records by claiming excess amount through cash vouchers than the amount sanctioned and made fictitious entries in the register and in Imprest Ledger and General Ledger and obtained the said amount by corrupt or illegal means.
6. Similarly, in C.C. No.44/2008 the prosecution allegation is that an amount of Rs.10,000/- was misappropriated by falsifying cash voucher and an amount of Rs.10,000/- also was misappropriated during the period 4-4- 1997 to 30-8-1997 by the accused. C.C.No.45/2008 was registered alleging misappropriation of Rs.13,208.12 by manipulating and falsifying cash vouchers for the period commencing from 01-1-1998 to 17-1-1998, by the accused.
7. C.C.No.46/2008 was registered alleging misappropriation of Rs.19,023.09 for the period commencing from 22-8-1998 to 24-1-1998 and 2-2-1998 to 25-3-1998 by manipulating and falsifying cash vouchers by the accused.C.C. No. 47/2008 was registered pertaining to the period commencing from 05-11-1998 to 15-12-1998 under which an amount of Rs.32,035.12 was misappropriated by the accused by manipulating and falsifying cash vouchers and without paying wages of Rs.833.76 to worker K. V. Purushothaman and Rs.280.51 to worker Shajimon. In C.C. No. 48/2008, the amount alleged to have been misappropriated by the accused would come to Rs.30,000/- by manipulating and falsifying cash vouchers for the period commencing from 21- 1-1999 to 8-2-1999.
8. Likewise C.C. No.49/2008 was also registered on the allegation of misappropriation of Rs.15,990.72/- for the period commencing from 23-1-1999 to 15-2-1999 by the accused. C.C.No.50/2008 was registered on the allegation of misappropriation of Rs.30,086.98 by the accused for the period commencing from 3-5-1999 to 11-5-1999. C.C.No.51/2008 was also registered alleging misappropriation of an amount of Rs.28,450.18 for the period commencing from 24-6-1999 to 09-8-1999, by the accused. C.C.No. 52/2008 was registered alleging misappropriation of an amount of Rs.35,543.87 for the period commencing from 07-10-1999 to 22-10-1999 by the accused. C.C.No.53/2008 was registered alleging misappropriation of an amount of Rs.13,041.83 for the periods from 18-8-1999 to 24-8-1999 and 04-11-1999 to 24- 11-1999 by the accused.
9. C.C.54/2008 was registered against the accused alleging misappropriation of an amount of Rs.80,276.60 inclusive of an amount of Rs.50,000/- covered by a cheque by falsifying vouchers including bank voucher for the periods commencing from 21-10-1998 to 04-12-1998 and on 12-3- 1999, 13-3-1999, 06-11-1999 and 01-2-2000.
10. The Special Court framed separate charges for the above said offences. Thereafter, the Special Court conducted joint trial of these cases, recorded evidence and tried the matter. During trial, PWs 1 to 10 were examined and Exts.P1 to 118 were marked on the side of the prosecution. After questioning the accused under Section 313(1)(b) of Cr.P.C, DW1 was examined and Exts.D1 to D6 were marked on the side of accused as defence evidence.
11. On appreciation of evidence, the Special Court found that the accused Nos.1 and 2 were guilty for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the P.C. Act and under Sections 409, 471 and 477A read with 120B the IPC. Accordingly, they were convicted for the said offences and sentenced as under:
C.C.No.43/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.22,398/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.44/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.20,000/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.45/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.13,208/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.46/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec. 13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.19,023/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.47/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.32,035/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.48/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.30,000/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.49/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec. 13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.15,990/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.50/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.30,086/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.51/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec. 13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.28,450/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.52/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec. 13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.35,543/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.53/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec.13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.13,041/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
C.C.No.54/2008:-
Accused Nos.1 and 2 found guilty of offence punishable under Section 13(1)(c) and (d) r/w. Sec. 13(2) of Prevention of Corruption Act, 1988 and under Sections 409, 471 and 477A IPC r/w. Section 120B IPC and they are convicted for the said offences and sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.80,276/- each, in default to undergo simple imprisonment for a period of two months each for the offence punishable under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 also sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 477A IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 409 IPC and simple imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 471 IPC. They are directed to run the substantive sentences of imprisonment concurrently.
12. The learned counsel for the 1st accused argued certain questions of law, while canvasing interference in the impugned common judgment on the ground that the same is unsustainable in law. According to him, PW1, the Finance Manager and PW2, the Managing Director of Foam Mattings (India) Limited, Alappuzha, were the persons examined on the side of the prosecution to prove that the accused committed the offences alleged by the prosecution. It is pointed out that, all the vouchers whereby the misappropriation was alleged were finally signed by PWs 1 and 2 and in fact, the encashment of the amount misappropriated is at the volition of them also. If so, their status before the Court as witnesses is nothing but as that of accomplice witnesses. Therefore, their evidence would require thorough scrutiny supported by corroborative evidence to be acted upon. It is pointed out that, in fact, PWs 1 and 2 should have been arrayed accused in this scam. Apart from that, it is argued by the learned counsel for the 1st accused that, even though Ext.P1 order showing appointment of the 1st accused as cashier, signed by the Managing Director dated 01.04.1992 has been produced by the prosecution, the same does not depict the fact that, the same was an order pertaining to Foam Mattings (India) Limited. He also submitted that, Ext.P2 would show that, even though Ext.P2 has been produced as proceedings of the Managing Director, Foam Mattings (India) Limited dated 01.12.1993, the same is not proved by examining the authors thereof in tune with the mandate of the Companies Act. The learned counsel for the 1st accused has placed much reference on Section 194 read with 291 of the Companies Act. In this regard, he has placed decision of the Apex Court reported in [AIR 2005 SC 2506 : MANU/SC/0387/2005] Shubh Shanti Services Ltd. v. Manjula S. Agarwalla and Ors., with reference to paragraph No.24, wherein an assurance given by the Chairman and Board of Directors of the Company to a widow of a staff of the company, who died, to allow her to reside in a flat, was considered. The Apex Court in paragraph No.24 held that, in the absence of any authority to the Chairman by the Board of Directors to act for and on behalf of the company, the assurance given by him to the respondents would not bind the company, nor it will create a binding agreement between the parties, namely, Respondents 1 and 2 and the company to permit the respondents to remain in possession even after the death of Shri Agarwalla, of the flat in Sonmarg. Apart from this, the Board of Directors itself could exercise the powers in accordance with the memorandum of association or the articles of the company. Any power exercised beyond the memorandum or the articles of the company would not bind the company. Any assurance given by the Board of Directors either should be authorised object of the company by the memorandum of association or the articles of the company or its purpose should be reasonably ancillary or incidental to carrying on the companies business.
13. The learned counsel for the 1st accused also placed decision of the Bombay High Court in Ashish C. Shah v. M/s. Sheth Developers Pvt.Ltd. and Ors reported in [2011 CRI.L.J. 3565] and the decision of the Delhi High Court in Escorts Limited v. Sai Autos and Ors. reported in [AIR OnLine 1990 DEL 11] in support of his contentions.
14. The learned Public Prosecutor would submit that, while questioning accused Nos.1 and 2 regarding their employment in Foam Mattings (India) Limited suggesting position as cashier and accountant, they have admitted the same during their examination under Section 313 of Cr.P.C, in addition to Exts.P1 and P2.
15. In this connection, the learned counsel for the 1st accused placed two decisions of the Apex Court viz. [MANU/SC/0468/2013 : AIR 2013 SC 3150] Raj Kumar Singh v. State of Rajasthan and [MANU/SC/0849/2002 :
AIR 2002 SC 3582] Mohan Singh v. Prem Singh and Ors. and the crux of the arguments posed on these decisions advanced by the learned counsel for the 1st accused is that, if the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C. could not be made the sole basis of his conviction.
16. It is argued by the learned counsel for the 1st accused further that, an application filed by the 1st accused as a CMP No.1190/2011 to recall the witness already examined in these cases was not considered by the Special Court and in fact, no effective cross-examination effected for and on behalf of the 1st accused. Therefore, the same may also be considered as the reason to record acquittal of the 1st accused, since recalling and re-examining the witnesses could not be possible because of paucity of time and non- availability of the witnesses.
17. The learned counsel for the 2nd accused taken attention of this Court to paragraph Nos.50 to 55 and 59 of the impugned judgment to contend that, merely because of an entry showing sanction of Rs.2,77,264.45 in Ext.P101 Imprest Ledger by the 2nd accused, the Special Court found that he hatched conspiracy and facilitated misappropriation of amount along with the 1st accused. It is also urged that, apart from Ext.P101, the Special Court also believed Ext.P73 showing entry therein, since the period shown as regards to sanctioning of Rs.2,77,264.45 as on 14.02.1997, whereas the amount entered in Ext.P101 as on 14.09.1991. According to the learned counsel for the 2nd accused, the Special Court found that, there is no evidence to show that the 2nd accused misappropriated any amount. Therefore, the 2nd accused would deserve acquittal, is the submission of the learned counsel for the 2nd accused.
18. Per contra, pointing out the admissions made by accused Nos.1 and 2 in the 313 statement pertaining to question Nos.1 to 3 as already pointed out, the learned Public Prosecutor submitted that, in this matter, the evidence of PWs 1 and 2 have been tendered with a view to substantiate Ext.P1 to P118 documents and also to identify the handwriting of accused Nos.1 and 2 in the respective books and vouchers. According to him, the substantive evidence in these cases are Exts.P1 to P118 and the evidence of PWs 1 and 2 was given reliance to prove the same, though the same are official documents, it would get evidentiary value merely on production and marking the same. The learned Public Prosecutor emphatically denied the status of PWs 1 and 2 as accomplice witnesses, as this argument mooted for the first time before this Court. According to the learned Public Prosecutor, even though PWs 1 and 2 were also signatories to the vouchers, the prosecution did not array them as accused, since it was found during investigation that they had no role in the alleged manipulation, where accused Nos.1 and 2 alone had involvement. Therefore, their status could not be held as accomplice witnesses. Otherwise also, the documentary evidence alone would show the involvement of the accused as alleged by the prosecution. As regards to the allegation against the 2nd is concerned, it is pointed out by the learned Public Prosecutor that, apart from the entry made by the 2nd accused in Ext.P101 Imprest Ledger, he had verified Ext.P80 series, Ext.P91 series, Ext.P94 series, Ext.P97 series and Ext.P100 series vouchers prepared at the handwriting of the 1st accused. Therefore, his involvement in misappropriating the amounts, after hatching conspiracy with the 1st accused could be found from the above documents altogether. Further, the 2nd accused also does not deserve any concession merely on finding his role is confined to making entries in Ext.P101.
19. In view of the rival submissions, the questions arise for consideration are:
1. Whether the Special Court is justified in finding that the accused/appellants committed the offence punishable under Section 13(1)(c) read with 13(2) of the P.C. Act, in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008?
2. Whether the Special Court is justified in finding that the accused/appellants committed the offence punishable under Section 13(1)(d) read with 13(2) of the P.C. Act, in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008?
3. Whether the Special Court is justified in finding that the accused/appellants committed the offence punishable under Section 409 read with 120B of IPC, in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008?
4. Whether the Special Court is justified in finding that the accused/appellants committed the offence punishable under Section 471 read with 120B of IPC, in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008?
5. Whether the Special Court is justified in finding that the accused/appellants committed the offence punishable under Section 477A read with 120B of IPC, in C.C. Nos.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 57 of 2008?
6. Whether the common verdict of the Special Court would require interference?
7. Order to be passed?
20. Point Nos.1 to 5:- In order to address these questions, it is necessary to evaluate the evidence tendered by the prosecution. Ext.P49 is the wage details for the period from 04-10-1999 to 09-10-1999. The amount sanctioned for payment as per Ext.P49(a) would come to Rs.56,232.14. The corresponding pay slips were produced and marked as Ext.P50. The amount covered by Ext.P50 also tallies with the amount sanctioned which would come to Rs.56,232.14. But as against the above said amount of Rs.56,232.14, what was included in Ext.P51 series vouchers is an excess amount of Rs.72,164.14 and the excess amount would come to Rs.15,932/-. According to PW1, it was prepared by accused No.1 and it contained the initial of accused No.1.
21. Ext.P52 is the wage details for the period from 11- 10-1999 to 16-10-1999. The amount sanctioned for payment as per Ext.P52(a) would come to Rs.92,361.82 and the corresponding pay slips was also for the said amount, which is well evident from Ext.P53 series. As against the above said amount of Rs.92,361.82, what was entered in the corresponding vouchers, Ext.P54 series, would come to Rs.1,08,297.90 and the excess amount would come to Rs.15,936.08. According to PW1, all these vouchers were prepared by accused No.1 and it contained her initial.
22. In C.C. No.53 of 2008, Exts.P55 to P62 got marked. Among them Ext.P55 is the wage details for the period from 25-10-1999 to 30-10-1999. Ext.P55(a) is the sanction order for payment of Rs.59,093.83. The corresponding pay slips also show the disbursement of Rs.59,093.83, which are well evident from Ext.P56 corresponding pay slips. But as against the above said amount of Rs.59,093.83 corresponding vouchers Ext.P57 series was for a larger amount of Rs.99,093.83. The excess amount would come to Rs.10,000/-. It was also prepared in the handwriting of accused No.1 and it bore her signature, according to PW1.
23. Ext.P58 is the salary details of the month August, 1999. The amount sanctioned for payment would come to Rs.1,07,592.95 as per Ext.P58(a) order sanction for payment. The corresponding pay slips are also produced and marked as Ext.P59 which was also for the same amount of Rs.1,07,592.95. But as against the above said amount of Rs.1,07,592.95 what is seen entered in Ext.P60 vouchers would come to Rs.1,10,152.30. The excess amount would come to Rs.2,559.35. According to PW1 it was also prepared in the handwriting of accused No.1 and it bore her initial.
24. Likewise Ext.P61 is the pay advice register bearing Sl.Nos.1401 to 1500. Among them an amount of Rs.98,707.95 was sanctioned as per Ext.P61(a) series, Folio Nos. 1401 to 1420. But as against the above said amount of Rs.98,707.95, an amount of Rs.99,190.43 seen written in corresponding vouchers exhibited as Ext.P62 series. The excess amount would come to Rs.482.48. All these vouchers were prepared in the handwriting of accused No.1 and it contained her initial.
25. In C.C.No.54/2008, Exts.P63 to P67 got marked. An amount of Rs.11,392.26 was sanctioned in Ext.P61(b) series, Folio No.1421 to 1423. The corresponding voucher was produced and marked as Ext.P63 in which an amount of Rs.12,539.86 was written as against Rs.11,392.26. The excess amount would come to Rs.1,147.60. It was prepared in the handwriting of accused No.1, according to PW1. Ext.P64 series are vouchers for Rs.28,411.49. According to PW1, it was also prepared in the handwriting of accused No.1 and it bore her initial. But there was no corresponding pay slips for the said amount. No sanction was also granted for the said amount, according to PW1. No explanation submitted by the accused regarding what happened to the said amount.
26. Ext.P65 series are Folio Nos. 1601 to 1700 of pay advice register. As per Ext.P65(a) pay advice No.1624, an amount of Rs.3,527.95 was sanctioned under the head leave with wages. But the corresponding voucher Ext.P66 was prepared for an amount of Rs.4,238.92. The excess amount included would come to Rs.710.97. It was also prepared in the handwriting of accused No.1, according to PW1. Ext.P67 is the cheque dated 01-2-2000 for Rs.50,000/- and Ext.P68 is the bank voucher prepared in the handwriting of accused No.1. The above said amount was not included in the rough cash book, according to PW1 and it was the duty of the accused No.1 to enter the same in the rough cash book.
27. In C.C.No.43/2008, the documents produced and marked in this case are Ext.P69 to P74. Ext.P69 is the pay advice for the period 1996-97. An amount of Rs.73,156.65 was sanctioned as charges payable for the period commencing from 02-12-1996 to 07-12-1996. But the corresponding voucher Ext.P70 series a larger amount of Rs.74,713/- was included with a difference of Rs.1,554.35. According to PW1, it was also prepared in the handwriting of accused No.1.
28. An amount of Rs.82,057.50 was sanctioned under Ext.P71 pay advice register for the period commencing from 10-3-1997 to 15-3-1997. But the corresponding voucher Ext.P72 the amount entered would come to Rs.91,840.55. The excess amount included would come to Rs.9,753.05. It was also prepared in the handwriting of accused No.1 and it bore her initial, according to PW1.
29. An amount of Rs.2,49,890.10 was sanctioned under Ext.P73(a), pay advice No.1823. Ext.P73 is the pay advice register for the period 1997-98. As against the above said amount what was included in Ext.P74 series, which are the corresponding vouchers would come to Rs.2,60,951.30. The excess amount included would come to Rs.11,061.20. According to PW1, it was also prepared in the handwriting of accused No.1 and it contained her initial.
30. In C.C. No.44/2008, the documents produced and marked are Exts.P75 to P81. Among them Ext.P75 is the wage details for the period from 11-8-1997 to 16-8-1997. The sanction order Ext.P75(a) for payment would come to Rs.1,11,857.03 and Ext.P76 series (188 in Nos.) are the corresponding pay slips for the said amount. But as against the above said amount of Rs.1,11,857.03, the amount included in the corresponding vouchers, Ext.P77 series, would come to Rs.1,17,209.30. The excess amount included would come to Rs.5,352.27. According to PW1, all these vouchers were prepared in the handwriting of accused No.1 and it bore her initial.
31. Ext.P78 is the wage details for the period 18-8- 1997 to 23-8-1997. Ext.78(a) is the net amount sanctioned for payment which would come to Rs.1,12,637.72 and the corresponding pay slips also produced and marked as Ext.P79. It also tallied with the said amount of Rs.1,12,637.72. But as against the above said amount of Rs.1,12,637.72 what was entered in Ext.P80 vouchers would come to Rs.1,17,622.06. The excess amount included would come to Rs.4,984.34. According to PW1, it was prepared in the handwriting of accused No.1 and it contained her initial.
32. Ext.P81 is the cheque for Rs.10,000/- dated 04- 4-1997. It was encashed. But it was not entered in rough cash book for the period 01-10-1996 to 31-3-1998, which is produced and marked as Ext.P82. On going through it, it is well clear that the above said amount not included in the rough cash book. The presentation and encashment of cheque was also proved through PW5 by the prosecution.
33. In C.C.No.45/2008, the documents produced and marked are Exts.P83 to P91. Among them, Ext.P83 is the wage details for the period 22-12-1997 to 27-12-1997. As per Ext.P83(a), an amount of Rs.53,348.99 was sanctioned for payment and the corresponding pay slips (163 in nos.) produced and marked as Ext.P84. The amount covered by Ext.P84 pay slips, tallying with the amount sanctioned, which would come to Rs.83,348.99. But the corresponding voucher, Ext.P85, was prepared for a larger amount of Rs.88,063.91. The excess amount included in that vouchers would come to Rs.4,714.91. All the vouchers were in the handwriting of accused No.1 and it bore her initial, according to PW1. Ext.P86 is the wage register for the period 29-12-1997 to 03- 1-1998. An amount of Rs.82,864.15 was sanctioned under Ext.P86(a) for payment. The corresponding pay slips produced and marked as Ext.P87 and the amount disbursed thereunder tally with the amount sanctioned which would come to Rs.82,364.15. But in the corresponding vouchers Ext.P88 as against the above said amount of Rs.82,864.15, a larger amount of Rs.87,527.84 was written and the excess amount would come to Rs.4,663.69. According to PW1, it was prepared in the handwriting of accused No.1 and it contained the initial of accused No.1. Besides accused No.1 also affixed his initial in the place just below the word "verified" written in that document. Ext.P89 is the wage details for the period 05-1-1998 to 10-1-1998. An amount of Rs.73,827.13 sanctioned under Ext.P89(a) for payment. The corresponding pay slips (163 in nos.) marked as Ext.P90 tally with the above said amount which would come to Rs.73,827.13. But as against the said amount of Rs.73,827.13, the corresponding vouchers, Ext.P91, were for a larger amount of Rs.77,656.65 and the excess amount would come to Rs.3,829.52. According to PW1, it was prepared in the handwriting of accused No.1 and initialed by accused No.2 in the place wherein the word "verified" written.
34. In C.C.No.46 of 2008 the documents produced and marked are Exts.P92 to P100. Among them, Ext.P92 is the wage details for the period 12-1-1998 to 17-1-1998. As per Ext.P92(a), the amount sanctioned for payment would come to Rs.84,075.23. The corresponding pay slips for the said amount are produced and marked as Ext.P93. The amount covered by pay slips and the amount sanctioned for payment as per Ext.P92(a) and Ext.P93 would come to Rs.84,075.23. But as against the above said amount of Rs.84,075.23, the corresponding vouchers, Ext.P94, was for a larger amount of Rs.93,899.83 and excess amount included would come to Rs.9,814.60, which was also prepared in the handwriting of accused No.1 and accused No.2 verified the same by putting his initial, according to PW1.
35. As regards to the contention raised by the learned counsel for the 1st accused that the prosecution failed to prove the status of the 1st accused as cashier of Foam Mattings (India) Limited is concerned, when reading Exts.P1 and P2 along with the evidence of PW1 and PW2, the same would clearly indicate that both the accused worked as cashier and accountant respectively in Foam Mattings (India) Limited, Alappuzha. Thus, the decisions placed by the learned counsel for the 1st accused viz. [MANU/SC/0468/2013 : AIR 2013 SC 3150] Raj Kumar Singh v. State of Rajasthan and [MANU/SC/0849/2002 :
AIR 2002 SC 3582] Mohan Singh v. Prem Singh and Ors. have no application in the present case. Supporting Ext.P2, the admission during examination under Section 313 of Cr.P.C. also is available. Therefore, there is sufficient substantive evidence to prove this fact.
36. Even though, the decisions placed by the learned counsel for the 1st accused would show that, in order to prove the decisions of the Managing Committee of the company, examining the Managing Director is the mode, insofar as the status of the employees working in a company, their posting, promotion etc., there is no necessity to prove the documents by examining the Managing Director concerned. Therefore, this contention must fail. Although learned counsel for the 1st accused argued on the basis of the questions of law discussed herein above, he did not challenge the verdict on evaluation of evidence.
37. On scrutinizing the allegations precisely, as submitted by the learned Public Prosecutor, the allegations could be summarized as under:
I
38. Before conclusion, it is relevant to refer one submission made by the learned counsel for the 1st accused as regards to pendency of C.M.P. No.1190/2011 filed by the 1st accused for recalling and re-examining the witnesses.
Regarding C.M.P. No.1190/2011, the learned Special Judge discussed in paragraph No.46 of the judgment impugned at length and the same is extracted hereunder:
46. At this juncture, it is worthwhile to note the conduct of accused No.1 during the trial of these cases. Application in CMP No.1190 of 2011 was filed for recalling the witness examined in these cases. Earlier another application was filed in C.M.P. No.1062/2011 in continuation of certain other applications filed by the very same accused. All these applications were filed to drag the proceedings of this court and it is well evident from the various application and orders passed by this court and the postings which were given for examination of each and every witnesses. It is too unfortunate that accused No.1 filed application one after another without co-operating with the trial of the case. From the very inception onwards the accused took an adamant stand not to co-operate with the trial of the case. Being an old case it was suo moto advanced after giving notice to both the parties and adjourned to 13-6- 2011 for hearing on charge. On 13-6-2011 accused Nos. 1 and 2 were present. The counsel for accused Nos.1 and 2 were absent and hence this court was not in a position to conduct preliminary hearing and hence adjourned to 14.6.2011 by ordering last chance. On that day both the parties were heard and charges were framed. Joint trial was allowed. Summons were issued to the witnesses and adjourned to 21-6-2011. On that day, PW1 was chief examined. Adv.Abhilash who is holding joint vakkalath also present on that day. Chief examination was not completed on that day and hence again adjourned to 23-6-2011. On 23-6-2011 accused No.1 was present. But accused No.2 was absent. Both the counsel also absent and hence bail against accused No.2 cancelled and Non-bailable Warrant was issued and the case was posted to 28-6-2011. In the meanwhile, on 27.6.2011, an advance petition was filed by accused No.2 and took fresh bail. On 28-6-2011, accused Nos.1 and 2 were present. Chief examination of PW1 conducted, but not completed and hence adjourned to 29-6-2011. It is by that time, the accused No.1 approached the Hon'ble High Court with O.P.(Crl.) No.2018/2011. In spite of the order passed by the Hon'ble High Court directing accused No.1 to file an application on 28-6-2011 for adjournment no such application was filed on 28-6-2011 presumably on the reason that the chief examination was not completed on that day. It was adjourned to 29-6-2011 and on that day chief examination was completed. But accused No.1 was not ready for cross-examining the witness though chief examination continued upto 29-6-2011. So this court has no other alternative than to grant time for cross-examination and as such case was adjourned to 30-6-2011 for cross-examination. On 30.6.2011 though the counsel appearing for accused No.1, Adv. Abhilash from Alappuzha, was present in the court and in spite of earnest attempt made by the court, Adv. Abhilash took an adamant stand and left the witness without conducting cross-examination. So this court has no other alternative than to close the cross-examination of accused No.1 and thereafter, accused No.2 cross- examined the witness. The application, CMP 1062/2011, was filed stating the reason that the counsel was absent due to back pain. The reason advanced in that application found to be prima facie wrong because of the reason that Adv.Abhilash from Alappuzha who is holding the vakkalath was present in the court during the chief examination of witnesses on 28-6-2011 and 30-6-2011. The ailment stated in that application is back pain, that too without specifying the period of treatment, name of hospital etc. PW1 chief examined by the Additional Legal Adviser by marking more than 100 documents. Sufficient opportunity was granted by this court for cross-examining PW1. In spite of earnest attempt made by this court accused No.1 took an adamant stand not to cross-examine the witnesses. So the earlier application in C.M.P.1062/2011 was dismissed by this court by its order dated 30-6-2011. On 30-6-2011 PW1 was present and in spite of earnest attempt made by this court accused No.1 took an adamant stand. The witness was cross-examined by accused No.2 and got marked Exts.D1 to D5. It is thereafter, summons were issued to CWs.2 to 4 and adjourned to 05-7-2011. In the meanwhile, an application in C.M.P.1070/2011 was filed for recalling PW1 for cross-examination by accused No.1. This court as an abundant caution granted another opportunity to the accused by allowing that C.M.P., that too without ordering any costs by bearing principle of fair trial in mind. PW1 was recalled and he was present on 05-7- 2011. On that day, the counsel for accused No.1 cross- examined PW1 partially and made an abrupt end to the cross-examination all on a sudden without specifying any valid reason, much less any reason and again took the very same adamant stand. This was continued in the subsequent postings also at the time of examination of PW2 to PW10. PW4 was examined on 06-7-2011. PWs.5 and 6 were examined on 08-7-2011. PWs.8 to 10 were examined on 12-7-2011. This court granted several opportunities to accused No.1. But accused No.1 took adamant stand and not co-operated with the trial. It was at the fag end of the trial counsel for the accused No.1 opted to cross-examine one of the witnesses. All these would show that the attempt of accused No.1 was to drag the matter indefinitely and3 kept away without cross-examining the witnesses, in spite of several chances granted, presumably on the reason that there is no much relevance to the oral evidence involved.
39. On perusal of the above, it could be gathered that the 1st accused was not at all ready to finish the trial and he had filed repeated applications for cross-examining the witnesses, after neglecting to cross-examine the witnesses, even though sufficient opportunities were given to him. It is also relevant to note that, at one stage the 1st accused had approached this Court by filing O.P. (Crl) No.2018/2011 and this Court also allowed the same directing the 1st accused to file an application. After filing such an application on 28.06.2011, the Special Court posted the case for cross- examination on 29.06.2011, the 1st accused was not ready to cross-examine the witnesses. Again on 30.06.2011 also, an opportunity was given to the 1st accused to cross-examine the witnesses. Thus, the records of the Special Court would show that the 1st accused willfully not cross-examined certain witnesses as a tactic, fully knowing that cross- examination of the witnesses would give no advantage to him or the same as a futile exercise. Therefore, this Court is inclined to find that the 1st accused willfully relinquished his right to cross-examine certain witnesses. In the above circumstances, C.M.P. No.1190/2011 deemed to be dismissed by the learned Special Judge analyzing the attitude of the 1st accused, as discussed in paragraph No.46 of the judgment extracted herein above. Therefore, the contention of the learned counsel for the 1st accused that because of non providing of opportunity to the 1st accused to cross-examine the witnesses in terms of C.M.P. No.1190/2011 and the impossibility of getting those witnesses cross-examined by efflux of time, the 1st accused would deserve acquittal could not be countenanced. In this context, it is held that an accused willfully not cross-examined the witnesses, despite having provided repeated opportunities, cannot contend that he would deserve acquittal because he could not cross- examine certain witnesses, when an appeal being considered by the Appellate Court after 15 years of the verdict, when the availability of the witnesses for cross-examination found to be practically not possible. Addressing the contention raised by the learned counsel for the 1st accused that the status of PW1 and PW2 as that of accomplice witnesses, raised before this Court for the first time, this contention could not be countenanced as PW1 and PW2 never arrayed as accused in these cases and the prosecution case is that during investigation their involvement is ruled out specifically.
40. Coming to the contention raised by the learned counsel for the 2nd accused that he was roped into these crimes based on Ext.P101, the imprest register showing sanction of Rs.2,77,264.45, it is necessary to refer Exts.P101, P91 series, P94 series, P97 series and P100 series documents along with the evidence of PW1 and PW2 and other witnesses. Thus, it could be seen that, apart from the entry made by the 2nd accused in Ext.P101 Imprest Ledger, he had verified Ext.P80 series, Ext.P91 series, Ext.P94 series, Ext.P97 series and Ext.P100 series vouchers prepared at the handwriting of the 1st accused.
41. Regarding the finding of the learned Special Judge that the 2nd accused did not misappropriate any amount, it could be seen that, while holding so, the specific finding of the learned Special Judge is that, after hatching conspiracy with the 1st accused, the 2nd accused facilitated misappropriation of the amount by the 1st accused. In fact, that by itself is sufficient to hold that the 2nd accused also committed the offences found to be committed by the 2nd accused. Thus, this contention would definitely fail.
42. Point Nos.6 and 7:- Thus, on re-appreciation of evidence, the finding of the learned Special Judge that the accused committed the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the P.C. Act and under Sections 409, 471 and 477A read with 120B the IPC is to be sustained. Therefore, the conviction does not require any interference.
43. On perusal of the sentence imposed, it could be seen that the Special Court imposed sentence of imprisonment for one year and the minimum sentence provided for the offence punishable under Section 13(1)(c) and 13(1)(d) read with 13(2) of the P.C. Act is one year. Therefore, no reduction of sentence is possible in these cases. In such view of the matter, sentence also does not require any interference. Thus, the sentence imposed by the Special Court also stands confirmed. Therefore, the verdict impugned does not require any interference and in such view of the matter, these appeals must fail.
44. In the result, these criminal appeals stand dismissed. All interlocutory applications pending in these appeals stand dismissed.
45. The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the special court forthwith to undergo the sentence, failing which the special court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Special Court, forthwith, for information and further steps.
 |
This Product is Licensed to , |