Common Judgment:

1. Smt.Sarala Devi.T.C., who is the accused in C.C.Nos.29/2008 and 30/2008 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, has filed these two appeals challenging the common verdict rendered in C.C.Nos.29/2008 and 30/2008 dated 18.12.2013. The State of Kerala, represented by the learned Special Public Prosecutor, is the respondent.

2. Heard the learned counsel for the accused/appellant as well as the learned Special Public Prosecutor in detail. Perused the records of the Special Court as well as the common verdict impugned.

3. The prosecution case in C.C.No.29/2008 is that, the accused, while working as Secretary of the Service Co- operative Society Ltd. 4280, Thamarakkulam, during the period from 07.01.1986 to 03.11.2004, abused her official position  and  dishonestly  misappropriated  an  amount  of ₹1,500 (Rupees one thousand five hundred only) paid by Sri.K.I.Aney, the former Agricultural Officer, Krishi Bhavan, Thamarakkulam, on 16.06.2001, on behalf of the Krishi Bhavan in connection with the implementation of a Project, viz., Integrated Development of Vegetables including Root and Tuber Crops 2000-2001, without entering the said amount in the cash book and day book of the Society.

4. In C.C.30/2008, the prosecution allegation is that, the accused, while working as Secretary of the Service Co- operative Society Ltd. 4280, Thamarakkulam, during the period from 07.01.1986 to 03.11.2004, abused her official position  and  dishonestly  misappropriated  an  amount  of ₹14,000 (Rupees fourteen thosuand only) paid by Sri.K.I.Aney, the former Agricultural Officer, Krishi Bhavan, Thamarakkulam, on 26.02.2003,  on behalf of the Krishi Bhavan in connection with the fertilizers subsidy amount in the implementation of project viz., Macro Management 2001- 2002, without entering the said amount in the cash book and day book of the Society.

5. On this premise, the prosecution alleges commission of offences punishable under Sections 409, 465 and 477A of the Indian Penal Code (hereinafter referred to as 'IPC') as well as under Sections 13(1)(c) and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act, 1988') by the accused in both cases.

6. The learned Special Judge jointly tried these cases and recorded the evidence. PW1 to PW6 were examined and Exts.P1 to P13 were marked on the side of the prosecution. No evidence was adduced on the side of the defence. On analysis of the evidence, the learned Special Judge found that the accused committed offences punishable under Sections  409  and  477A  of  IPC  as  well  as  under Sections 13(1)(c) and 13(1)(d) r/w Section 13(2) of the PC Act, 1988. Accordingly, the accused was convicted and sentenced as under:

                  “36. Point No.10 in C.C.29/2008 :  …….. Therefore, for the offence under S.13(1)(c) and S.13(1)(d) r/w S.13(2) of P.C. Act, 1988, the accused is sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹1,000/- (Rupees One Thousand only) each. Fine, if not paid, accused shall undergo rigorous imprisonment for a further period of one month each. For the offence under S.409 I.P.C. also the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1,000/- (Rupees One Thousand only). Fine, if not paid, he shall undergo rigorous imprisonment for a further period of one month. For the offence under S.477-A I.P.C. accused is sentenced to undergo rigorous imprisonment for one year.

                  37. The substantive sentences awarded to accused shall run concurrently.

                  38.     Set off under S.428 of Cr.P.C. is allowed for the period of detention under gone by the accused, i.e., from 22nd August 2008 to 22nd October 2008.

                  39.     Point No.10 in C.C.30/2008: ……… ………. Therefore, for the offence under S.13(1)(c)  and  S.13(1)(d)  r/w.S.13(2)  of  P.C.Act, 1988, the accused is sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹1,000/- (Rupees One Thousand only) each. Fine, if not paid, accused shall undergo rigorous imprisonment for a further period of one month each. For the offence under S.409 I.P.C. also the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1,000/- (Rupees One Thousand only). Fine, if not paid, he shall undergo rigorous imprisonment for a further period of one month. For the offence under S.477-A I.P.C. accused is sentenced to undergo rigorous imprisonment for one year.

                  40. The substantive sentences awarded to accused shall run concurrently.

                  41. Set off under S.428 of Cr.P.C. is allowed for the period of detention undergone by the accused, I.e, from 22nd August 2008 to 22nd October 2008.

                  42. Considering the fact that the accused in this case is a widow and mother of two unmarried female children, I hereby direct under S.427 Cr.P.C, that the substantive sentences passed in this case shall run concurrently with the substantive sentence passed in C.C.29/2008.”

7. While impeaching the common verdict as unsustainable, the learned counsel for the accused/appellant zealously argued that the entire case is foisted. According to the learned counsel for the appellant, PW3 examined in this case, Sri.K.I.Aney, was the former agricultural officer, Krishi Bhavan, Thamarakkulam, and he initially arrayed as the 1st accused in this FIR and thereafter, the case against him was split up. It is pointed out that, during examination of PW3, he had deposed regarding the payment of ₹1,500 from Krishi Bhavan directly to the Secretary of the Co-operative Society and issuance of Ext.P1(b) receipt for ₹1500 and PW3 also deposed regarding the issuance of Ext.P3(ab) receipt where ₹14,000 was received from Krishi Bhavan directly to the Secretary on 26.02.2003, being the fertilizers subsidy amount in the implementation of project viz., Macro Management 2001-2002. The point argued by the learned counsel for the appellant/accused is that the evidence of PW3 as a co- accused could not be believed. The specific case of the accused/appellant is that Ext.P1(b) and Ext.P3(ab) receipts were forged by PW3 with the aid of PW2, who is the President of the Society, to save PW3 from the prosecution. It is also submitted that the amounts collected by the accused, as per Ext.P1(b) and Ext.P3(ab), were not deposited in Ext.P7 cash book and Ext.P8 day book is correct, since the accused never accepted any amount by issuing Ext.P1(b) and Ext.P3(ab). It is also submitted that in Ext.P1(b) and Ext.P3(ab) were not properly proved by the prosecution. In such view of the matter, the verdict would require interference by this Court.

8. Dispelling this argument, the learned Special Public Prosecutor submitted that, as deposed by PW3, the accused reached Krishi Bhavan and issued Ext.P1(b) receipt for ₹1500 and Ext.P3(ab) receipt for ₹14,000. Even though PW3 was arrayed as co-accused, later, the case was split up and on trial, he was acquitted finding that he did not commit any offences. According to the learned Special Public Prosecutor, apart from the evidence of PW3, independent evidence as that of PW2, the President of the Society, is available to establish that Ext.P1(b) and Ext.P3(ab) receipts were issued by the accused to PW3 on receipt of  ₹1,500 and ₹14,000 respectively. It is also pointed out that the evidence of PW2 is categorical with respect to the non- recording of the amounts collected as per Ext.P1(b) and Ext.P3(ab) in Ext.P7 cash book and Ext.P8 day book. Thus, entrustment of ₹1,500 and ₹14,000 with the accused, as per Ext.P1(b) and Ext.P3(ab), are proved and then the accused has to account for. But the accused has no explanation in this regard. Therefore, the accused misappropriated the said amount and the prosecution case in this regard is proved beyond reasonable doubts. Therefore, the common verdict would not require any interference.

9. In view of the rival submissions, points arise for consideration are,

                  1. Whether the Special Court rightly entered into conviction for the offence punishable under Section 409 of IPC in C.C.No.29/2008?

                  2. Whether the Special Court rightly entered into conviction for the offence punishable under Section 477-A of IPC in C.C.No.29/2008?

                  3. Whether the Special Court rightly entered into conviction for the offence punishable under Section 13(1)(c) r/w. Section 13(2) of the PC Act, 1988 in C.C.No.29/2008?

                  4. Whether the Special Court rightly entered into conviction for the offence punishable under Section 13(1)(d) r/w. Section 13(2) of the PC Act, 1988 in C.C.No.29/2008?

                  5. Whether the Special Court rightly entered into conviction for the offence punishable under Section 409 of IPC in C.C.No.30/2008?

                  6. Whether the Special Court rightly entered into conviction for the offence punishable under Section 477-A of IPC in C.C.No.30/2008?

                  7. Whether the Special Court rightly entered into conviction for the offence punishable under Section 13(1)(c) r/w. Section 13(2) of the PC Act, 1988 in C.C.No.30/2008?

                  8. Whether the Special Court rightly entered into conviction for the offence punishable under Section 13(1)(d) r/w. Section 13(2) of the PC Act, 1988 in C.C.No.30/2008?

                  9. Whether the impugned verdict would require any interference by this Court.

                  10. Order to be passed.

Point Nos.1 to 10

10. In this case, the allegation of the prosecution is that, the accused worked as Secretary of the Service Co-operative Society Ltd.  No.4280, Thamarakkulam  from  07.01.1986  to 03.11.2004. While so, she had misappropriated ₹1,500 and ₹14,000 after she got entrustment of the same on issuing Ext.P1(b) and Ext.P3(ab) receipts at her volition. The accused did not dispute her status as that of a Secretary. Otherwise, as deposed by PW2, supported by Ext.P5 minutes book, it could be gathered that the accused worked as Secretary of the Service Co-operative Society Ltd. No.4280, Thamarakkulam, during the relevant period. During 313 of the Code of Criminal Procedure (hereinafter referred to ‘Cr.P.C’) questioning also, towards question No.17, the accused answered in the affirmative, That apart, as deposed by PW2, as per Ext.P5(a) minutes, the accused   was   dismissed   from   service   and   this aspect also admitted by the accused while answering question No.20 during 313 Cr.P.C. questioning.

11. Here, the questions to be decided are, whether the accused issued Ext.P1(a) receipt for ₹1,500 and Ext.P3(ab) receipt for ₹14,000 got entrustment of the said amount and failing to account for by debiting the same in the account of the Society and whether the both amounts entrusted to her from the Krishi Bhavan Office, Thamarakkulam, were misappropriated by her.

12. PW2 examined in this case is the President of the Society. He deposed that Ext.P1(b) and Ext.P3(ab) receipts were in the handwriting of the accused and the signatures therein were also as that of the accused on ascertaining that he was familiar with the handwriting and signatures of the accused while working together as President and Secretary. The evidence of PW2 further is that, as per Clause 47 of Ext.P6  Bye-law,  the  custodian  of  the  properties  and documents of the Society is the Secretary and she had the custody of the letter head and seal of the Society. PW2’s evidence further is that, Ext.P7 is the cash book and Ext.P8 is the day book of the Society during the relevant period and the entries therein were written in the handwriting of the accused with her signatures. He categorically identified the handwriting and signatures of the accused in Ext.P1(b), Ext.P3(ab) as well as in Ext.P7 and Ext.P8. According to PW2, even though the accused collected the amounts covered by Ext.P1(b) and Ext.P3(ab), she did not remit the same to the account of the Society by making the necessary entries in Ext.P7 cash book and Ext.P8 day book.

13. Even though PW3 also supported the evidence of PW2 as regards the issuance of Ext.P1(b) and Ext.P3(ab) receipts by the accused after visiting the Krishi Bhavan and receiving the amounts covered by the same, as evident from records, PW3 was arrayed as a co-accused and his case was split up thereafter, which ended in acquittal. Even eschewing evidence of PW3, the unshaken version of PW2 sufficiently supports the prosecution case. Apart from that PW6 - the Investigating Officer, testified that, he had seized Exts.P1 to P4 from Krishi Bhavan, Thamarakkulam, on 20.10.2006 as per Ext.P11 inventory. Exts.P1 and P3, the files maintained at the Krishi Bhavan so recovered by PW6, would show that in Ext.P1 file in sheet No.5 manure cash bill issued from Service Co-operative Society Ltd.No.4280, Thamarakkulam, dated 28.03.2001 in the name of Raghavan, Convener is present. Sheet No.6 of Ext.P1 file is permit for the issue of fertilizers, i.e., permit No.1 pm/1/2000. Sheet No.7 of Ext.P1 file is the claim submitted by the Secretary Service Co-operative Society Ltd. 4280, Thamarakkulam against permit issued on 1 pm vegetable. This would show that the claim put forward as per sheet No.7 of Ext.P1 file is in respect of permit seen in sheet No.6 of Ext.P1 file. If that be so, from sheet No.5, 6 and 7 of Ext.P1 file, it is clear that there was transaction in between Thamarakkulam Krishi Bhavan and Service Co-operative Society Ltd. No.4280, Thamarakkulam in respect of manure and pesticides.

14. 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.”

15. 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.””

16. 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.

17. 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

18. 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).

19. 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.

20. 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.”

21. 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.”

22. 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.

23. 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”.

24. 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.

25. As per Section 13(1)(c) and (d) of the PC Act, 1988, a public servant is said to come under the offence of `criminal misconduct’, if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

26. In order to find the commission of offence under Section 409 of IPC, the prosecution requires to entrustment of money at the hands of the accused. In the instant case, as per Ext.P1(b) and Ext.P3(ab), supported by the evidence of PW1, PW2 and PW6, the accused collected money from Krishi Bhavan, as could be borne out from Exts.P1 to P4 documents and as could be seen from Ext.P1(b) and Ext.P3(ab) receipts and it is the duty of the accused to account for the same. It could be seen that, naturally the accused on receipt of the amount covered by Ext.P1(b) and Ext.P3(ab) should have remitted to the Society by showing necessary entries in Exts.P7 cash book and Ext.P8 day book. However, no corresponding entries pertaining to Ext.P1(b) and Ext.P3(ab) could be found in Exts.P7 and P8. PW1, the Agricultural Officer, deposed in support of the prosecution. According to her, Ext.P3(a) is the certified copy of the file in respect of cashew under Macro Management Scheme for Cashew Development Programme and Ext.P3 (ab) is the receipt issued by the Secretary of the Service Co- operative Society to the Agricultural Officer at the time of effecting payment of ₹14,000 on 26.2.2003. PW1 also stated before the special court that Ext.P3(aa) is the Contingent Bill of ₹44,000 which was prepared in respect of Macro Management Scheme for Cashew Development Programme and ₹14,000 which was paid as per Ext.P3(ab) receipt is a portion of ₹44,000 mentioned in Ext.P3(aa) contingent bill. PW1 also stated that   the payment  of ₹14,000 from Thamarakkulam Krishi Bhavan to Thamarakkulam Service Society was entered in Ext.P4. Ext.P4 is the certified copy of page No.66 of the Cash Book maintained in Thamarakkulam Krishi Bhavan on 26th February 2003 and Ext.P4(a) is the relevant entry. Thus, from the evidence of PW1 Agricultural Officer coupled with Ext.P1 file, Ext.P2(a) entry in the cash book of Krishi Bhavan and from Ext.P1(b) receipt it could be seen that ₹1,500 mentioned in C.C.29/2008 was given to the Secretary, Co-operative Society Ltd. No.4280, Thamarakkulam on 16.6.2001. From the evidence of PW1 coupled with Ext.P3(a) file and Ext.P4(a) entry in the cash book of Krishi Bhavan, Thamarakkulam, it can be also seen that ₹14,000 was paid to the Secretary, Co-operative Society Ltd.No.4280, Thamarakkulam on 26.2.2003, ie. the amount mentioned in C.C.30/2008. But at the same time, Ext.P3(ab) receipt issued by the Secretary of the Society is dated 03.03.2003, i.e, after five days of the payment of ₹14,000.

27. On evaluation of the prosecution evidence, collection/entrustment of  ₹1,500 and  ₹14,000 by issuing Ext.P1(b) and Ext.P3(ab) receipts respectively by the accused is established and the accused had no explanation how the money failed to be accounted or otherwise the amounts were remitted in the account in any other manner. Even though the learned counsel for the accused argued that the accused did not receive the amounts covered by Ext.P1(b) and Ext.P3(ab), the evidence discussed in detail above would show that this argument is not acceptable. Thus, from the prosecution evidence discussed in detail herein above, it is crystal clear that the prosecution case as to commission of offences punishable under Sections 409 and 477A of IPC as well as under Sections 13(1)(c) and 13( 1)(d) r/w Section 13(2) of the PC Act, 1988, by the accused is proved beyond reasonable doubts. In such view of the matter, the finding of the Special Court recording conviction in both cases is liable to be confirmed.

28. Coming to the sentence, it could be seen that the maximum punishment imposed by the special court is rigorous imprisonment for one year, which is the minimum sentence for the offence under Section 13(1)(c) as well as under Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988. The Special Court imposed the same sentence of rigorous imprisonment for one year each for the offence punishable under Section 409 and 477A of IPC. Thus, the sentence is, in fact, confined to the statutory minimum.  Therefore, the sentence also does not require any interference.

29. In view of the above, these criminal appeals fail and are accordingly dismissed.

30. The orders suspending sentence and granting bail to the accused stand cancelled and the bail bonds executed by the accused also stand cancelled. The accused is directed to surrender before the Special Court, forthwith, 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, without fail, for information and compliance.