D. Rajendran vs State Of Kerala

The judgment dated 26.04.2010 in C.C. No.7/2005 on the files of the Enquiry Commissioner and Special Court, Thiruvananthapuram, is under challenge in this appeal filed under Section 374(2) of the Criminal Procedure Code [hereinafter referred as ‘Cr.P.C’, for short], at the instance of the accused, who was found guilty by the special court.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor Sri. Sajeevan P.K., in detail. Perused the judgment impugned and the records of the Special Court.

The prosecution case in brief is that the appellant/accused, while working as Head Accountant, S.N College, Chempazhanthi during the period from 29.4.1993 to 30.7.1994, when entrusted with dominion over the fund of the College, as public servant, he had committed criminal breach of trust by criminally misappropriating a total amount of Rs.1,47,626/-, during the period from 15.9.1993 to 23.7.1994 by making false entries in the connected records and by creating forged documents and by using those forged documents as genuine and also by causing disappearance of evidence. Thus the prosecution alleges commission of offences punishable under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act, 1988 [hereinafter referred to as the 'P.C. Act' for short] and under Sections 409, 465, 468, 471, 477A and 201 of the Indian Penal Code [hereinafter referred to as the 'IPC' for short] by the accused.

The learned Special Judge ventured the matter after completing the pre-trial formalities. During trial, PW1 to PW7 were examined and Exts.P1 to P49 were marked on the side of prosecution. No defence evidence was adduced. On considering the matter on merits, the Special Court found that the accused/appellant herein committed offences punishable under Section 13(2) read with 13(1)(c) of the P.C. Act and under Sections 409, 465, 468, 471, 477A and 201 of the IPC and sentenced him as under:-

Multiple contentions have been raised by the learned counsel for the appellant/accused to unsustain the verdict. According to the learned counsel for the appellant/accused, the misappropriation alleged against the appellant/accused was not proved by the prosecution with support of convincing, cogent and reliable evidence, to prove the guilt of the accused, failed to be adduced. According to him, the misappropriation in the instant case is confined under seven heads. It is further submitted that as per Ext.P26, item No. I, A1- Accounts section was held by D. Rajendran, the Head Accountant and the duties entrusted to him are as under:-

The learned counsel for the appellant/accused would submit that apart from the same, as per Ext.P26, Smt. B. Sudharmma, L.D. Accountant was entrusted with the works related to P.F., F.B.S. and Group Insurance scheme and maintenance of its accounts and registers. Monthly reconciliation of P.F., F.B.S. accounts with Treasury accounts, Schedules of P.F., F.B.S. and group Insurance Scheme are to be prepared and handed over to the A5 section & A7 section by 10th of every month, to incorporate with the main bills of teaching and non-teaching staff. Maintenance of stock register for stationery and printed forms registers etc and stock register for furniture. Therefore the prosecution failed to produce convincing evidence to prove the guilt of the accused and therefore, the verdict of the Special Court is liable to be interfered.

The learned Public Prosecutor supported the verdict of the Special Court and justified the verdict to confirm the same, though he did not argue in detail.

In response to the rival contentions, the points to be considered are as under;

Whether the Special Court is in right in holding that the appellant/accused committed offence punishable under Section 13(2) read with 13(1)(c) of the P.C. Act ?

Whether the Special Court is in right in holding that the appellant/accused committed offence punishable under Section 409 of the IPC ?

Whether the Special Court went wrong in holding that the appellant/accused committed offence punishable under Section 465 of the IPC ?

Whether the Special Court is in right in holding that the appellant/accused committed offence punishable under Section 468 of the IPC ?

Whether the Special Court went wrong in holding that the appellant/accused committed offence punishable under Section 471 of the IPC ?

Whether the Special Court is in right in holding that the appellant/accused committed offence punishable under Section 477A of the IPC ?

Whether the Special Court went wrong in holding that the appellant/accused committed offence punishable under Section 201 of the IPC ?

Whether the verdict of the Special Court would require interference?

The order to be passed?

Point Nos. 1 to 9: The first head of misappropriation alleged against the accused would come to an amount of Rs. 8,270/. According to the prosecution, the accused who held the charge of the accounts section remitted Rs.30 as per Ext.P3 pay-in-slip from the Treasury on 15.09.1993 and when Ext.P6 counterfoil of Ext. P3 was obtained, she had corrected the same as Rs. 8,300/- by putting '8' before '30' and '0' after '30', and accordingly, Rs. 8,270/- was misappropriated. PW2 examined in this case is the Principal of S.N.College, Chempazhathi during the period from 31.03.1993 to 30.05.1995 and he deposed that the accused was the head of the Accountant of the College from 29.04.1993 to 30.07.1994. In order to substantiate the same, Ext. P25, Service Book of the accused was tendered in evidence and Ext.P25(a) would show that the accused joined duty as Head Accountant of the College on the F.N. of 29.04.1993 and Ext.P25(b) would show that the accused was placed under suspension with effect from 30.07.1994 A.N., pending detailed enquiry. Thereafter, he was dismissed from service as per Ext.P45 order. He also deposed about the misappropriation by forging Ext. P3 and according to him, it was the accused who made forgery of Ext.P3. In fact, the evidence of PW2 is corroborated by the evidence of PW1, who was the Accounts Officer, conducted the audit of the said office and found the misappropriation.

PW1 deposed that he was the Accounts Officer of Collegiate Education Office, Kollam and as per the direction issued by the Deputy Director of Collegiate Education, he along with his team of officers conducted audit of the accounts for the period from 1.6.1990 to 31.7.1994 at the office of S.N College, Chempazhanthi and prepared Ext. P1(b) report. In his audit report the period of the accused as Head Accountant was shown as from 29.4.1993 to 30.7.1994. He added that during the tenure of the accused as the Head Accountant, misappropriation of money and forgery of documents in different transactions were noted. Ext. P2 was identified by him as the certified copy of folio No.21 of the Main Cash book of S.N College, Chempazhanthi. In Ext.P2 the caution money amount was shown as Rs.8,300/-. Ext.P3 was identified by him as the pay-in-slip dated 15.9.1993 showing the amount of Rs.30/-deposited at the Sub Treasury, Kazhakkuttom. Ext.P4, according to him was the certificate of remittance issued for the deposit of Rs.30/-. He had identified Ext.P5 as the pass book of Sub Treasury Savings Bank wherein also it was shown that an amount of Rs.30/-was deposited on 15.9.1993. Ext. P4 is the certified copy of the counterfoil of pay-in-slip of the Treasury Savings Bank. He added that in Ext.P4 though the amount deposited was Rs.30/- '0' was added on the right side and '8' was added on the left side and the same was converted to appear as Rs.8,300/- and the said forgery was committed while the document was in the custody of the accused in his capacity as the Head Accountant. So it is proved that while the accused held the post of Head Accountant, in such capacity, he was entrusted with the property (Rs.8,300/-) or with dominion over it, he forged the documents as discussed and used the same as genuine and also acted in such a way so as to cause disappearance of evidence of forgery and committed criminal misappropriation of an amount of Rs.8,270/-.

Even though it is submitted by the learned counsel for the accused/appellant that there is no evidence to show that who had misappropriated Rs.8,270/- by manipulating Ext.P3, and the evidence would not suggest that accused who held the post of the Accountant alone is the person who dealt with Exts. P2, P3 and P4 remittance, the evidence of PW1 and PW2 would show that it was the accused who held the post of Accountant in the college and by identifying the handwriting as that of the accused in Exts. P2, P3 and P4. PW1 given evidence that Ext.P4 was manipulated by the accused. In fact, as per Exts.P2 and P3, the amount actually remitted is only 'Rs.30/-' instead of 'Rs. 8,300/-' and forging Ext.P4 by putting '8' before '30' and '0' after '30', the amount was shown as 'Rs.8,300/-', instead of Rs. 30/-. Thus the allegations of the prosecution that the accused misappropriated Rs. 8,270/- as found by the Special Judge is only to be confirmed.

The second head of misappropriation is Rs. 21,347/- from the P.D. Account. Ext.P7 is the copy of the submission made to PW2 by the accused. PW2 identified the same as in the handwriting of the accused and also the signature of the accused. In Ext.P7 dated 10.12.1993, accused requested sanction to withdraw a total sum of Rs.21,347/- from the PD Account No.1 for the payment of 5 bills. It was sanctioned by PW2 on the same date itself. Ext. P8, the certified copy of the pass book of Sub Treasury, Kazhakkuttom would show that on 10.12.1993 itself accused had withdrawn Rs.21,347/- from the Treasury. Ext. P9 is the certified copy of the said payment. The same is issued by the Sub Treasury, Kazhakkuttom. It is certified in Ext.P9 that an amount of Rs.21,347/- had been paid by cheque No.047338 dated 10.12.1993 from PD-1 account in favour of Principal S.N College, Chempazhanthi. PW2 categorically deposed that the accused was in possession of cheque book and the cheque was written by the accused. According to PW2, the counterfoil of the said amount was torn of by the accused after detection of the misappropriation. Ext. P10 is the relevant page of the cash book with respect to the said transaction. Ext. P10 would go to show that the said amount was not entered in the cash book. According to PW2, this amount was misappropriated by the accused. The aforesaid evidence given by PW2 is corroborated by the evidence of PW1 who conducted the audit in the College. According to him, though the amount was withdrawn on 10.12.1993 the same was not entered in the cash book. Thus it is proved that the accused who got entrustment of Rs.21,347/-, on getting the same encashed had misappropriated an amount of Rs.21,347/-.

The third head of misappropriation would come to Rs.19,810/-, on the premise of paying the same to Sri. S.Gopi as the amount due to him under the Provident Fund (P.F.) and, Ext.P11 is the certified copy of folio No.217 of the cash book of S.N.College, Chempazhanthi dated 19.5.1994. Ext.P11 would show that an amount of Rs.19,810/- was paid to Sri.S.Gopi, Gasman of the said College. PW1 and 2 deposed that Ext.P12, Form No.2 would show the payment of the Provident Fund amount to Sri.S.Gopi. As per Ext.P12 an amount of Rs.20,236/- was paid to Sri.S.Gopi towards the PF on 22.3.1994. According to PW2, Sri.S. Gopi retired from service on 31.1.1994 and P.F. Account was closed and towards the closure amount of Rs.20,236/- was due to him and the same was received by him on 22.3.1994. Ext. P13 is identified by PW1 and 2 as the certified copy of folio No.29 of the acquittance register of the College. It would show that the amount of Rs.20,236/ was received by Sri.S.Gopi. Ext.P28 is the order dated 17.3.1994 with respect to the P.F. Closure of Sri.S.Gopi issued by the Director of Collegiate Education addressed to the Principal, S.N.College. Ext.P28 would show that an amount of Rs.20,236/- was due to Sri.S.Gopi towards the P.F. Closure. Ext. P30 is folio No. 166 of the cash book with respect to the actual payment of the P.F. amount to Sri.S.Gopi on 22.3.1994. PW2 identified the handwriting in Ext.P30 as that of the accused. So according to PW1 and 2, Sri.S.Gopi retired from service on 31.1.1994 and his P.F. Closure amount was finally paid on 22.3.1994 and the said amount was Rs. 20,236/-. According to PW2, after that no amount was due to S. Gopi from the College and the amount of Rs. 19,810/- which shown as paid to Sri. S. Gopi on 19.5.1994 was not received in the College as per the Treasury Bill Book and there was no Treasury sanction order for the said payment and the said amount was falsely shown in the cash book by forging the cash book and the same was done so as to misappropriate the amount available in the cash chest. Based on the evidence, the learned Special Judge found that the prosecution succeeded in proving that an amount of Rs.19,810/- was misappropriated by the accused by forging the cash book and using the forged book as genuine and also by making false entries in the cash book. In this connection, the learned counsel for the appellant argued that the P.F. Section was not headed by the accused. It was B. Sudharmma headed the Section relying on Ext.P26. But the evidence of PW2 would show that the handwriting in Ext.P30 is that of the accused and the cash book entry in this regard also was done by the accused. Therefore, this contention must fail.

The fourth head of misappropriation alleged against the appellant/accused is Rs.20,593.80, which was received for remittance to Life Insurance Corporation ('LIC', for short), This misappropriation alleged to be on two heads viz., (1) temporary misappropriation of Rs.19,809.62 and (2) misappropriation of Rs.784.18. In this connection, the evidence of PW1 and PW2 and Ext. P14 had been relied on by the Special Judge. Ext. P14 identified by PW1 and 2 as the chalan-cum-receipt for an amount of Rs.20,593.80 showing that the said amount was remitted to the LIC. According to PW1, the actual date therein as '20.1.1994' in the said receipt was corrected and wrong date was entered as '19.5.1994'. PW1 deposed that the said deposit was not actually made by the accused as on 19.05.1994. Ext.P16, dated 12.05.1994 identified by PW1 and 2 as the letter issued by the Branch Manager of LIC, Thiruvananthapuram to the Principal, S.N College, Chempazhanthi. Ext.P16 would go to show that no amount was deposited on 19.5.1994 as shown in Ext.P14. But in the cash book, accused had endorsed that he deposited an amount of Rs.20,593.80 on 19.5.1994. PW2 stated that the wrong entry was made in the cash book willfully by the accused and when the cash book was presented before him, accused produced Ext. P14 by correcting the date from 20.1.1994 to 19.5.1994. After the said incident on 19.6.1994, according to PW2 accused deposited an amount of Rs.19,809.62. So PW2 given evidence that the said amount was temporarily misappropriated by the accused till 9.6.1994 and thereafter he had misappropriated an amount of Rs.784.18 and deposited an amount of Rs.19,809.62. In this regard, PW1 corroborated the evidence of PW2. PW1 specifically deposed that in page No.4 of Ext. P2(b) his audit report, it was so found. Thus the learned Special Judge found that the prosecution proved that the accused manipulated the said receipt and temporarily misappropriated Rs.19,809.62 till 9.6.1994 and finally misappropriated an amount of Rs.784.18. The learned counsel for the appellant/accused though disputed this finding, in fact, she failed to justify the same.

The learned Special Judge found another instance of temporary misappropriation of Rs. 20,481.10 (Rs.17,653.30 + Rs.2,813/-) and misappropriation of Rs. 14.80, holding as under:-

On scrutiny of the evidence discussed for finding the above misappropriation, the same could be found and therefore the said finding need not be interfered.

The next head of misappropriation is an amount of Rs.15,998/-, under the head of P.F. to non-teaching staff. In order to found this misappropriation, the learned Special Judge relied on the evidence of PW1, PW2 and Exts.P17 to P20 and Ext.P32 series. Ext.P17 is the certified copy of page 223 of the cash book of S.N College, Chempazhanthi. An amount of Rs.15,998/- is shown in Ext.P17 as disbursement of PF to non teaching staff. In Ext.P17, in the disbursement column it is shown that an amount of Rs. 15,998/-was disbursed on 26.5.1994 as P.F to non teaching staff. Ext. P18 is the certified copy of sheet No.8 of Treasury Bill Book dated 25.5.1994. Ext.P19 is the certified copy of sheet No.9 of Treasury Bill Book and Ext. P20 is the certified copy of sheet No.10 of Treasury Bill Book. The disbursement dated 26.5.1994 as shown in Ext. P17 was not entered in Exts. P18, P19 and P20 Treasury Bill Books. The same was deposed by PW1 and 2. So according to PW1 and PW2, as per the Treasury Bill Book no amount as aforesaid was received. Ext. P32 series are the acquittance roll of page Nos.33 to 36 of S.N College, Chempazhanthi. The above said disbursement was not mentioned in the P.F. Acquittance Roll and the P.F. sanction order was also not mentioned therein. PW2 stated that these circumstances would go to show that the amount of Rs. 15,998/- was misappropriated by the accused. The evidence of PW2 in this regard would get corroboration from PW1.

Regarding misappropriation of Rs.46,170/- and Rs. 35,228/-, the Special Court given emphasis to the evidence of PW2, Exts.P21, P22, P33, P34 and P35. Ext.P21 is the folio No.272 of the cash book of S.N College, Chempazhanthi. In Ext.P21 dated 23.07.1994, an amount of Rs.46,170/- is shown as disbursement of P.F to Teaching staff. An amount of Rs.35,228/- is shown as disbursement of PF to Non Teaching Staff. PW2 identified the handwriting of the accused in Ext.P21. In Ext. P23, it is noted that the amount of Rs.46,174/-was disbursed to Smt. M. R.Saraswathi Amma and the amount of Rs.35,228/-was disbursed to Sri.S.Gopi. Ext.P22 is the certified copy of the acquittance dated 23.7.1994 of S.N College, Chempazhanthi. Ext. P22, would show that the aforesaid amounts mentioned in Ext.P21 were disbursed. PW1 given evidence that when the PF amount would be disbursed the Treasury authorisation or the Order therein would be mentioned in Ext.P2. But no such endorsement to be found regarding this transaction. PW2 deposed that in Ext. P22, an amount of Rs.46,174/- was disbursed to Smt.M.R.Saraswathi Amma, Selection Grade Lecturer on 21.07.1994 and she affixed her signature above the revenue stamp. According to PW2, the same was a forged signature and the same was not signed by Smt.M.R.Saraswathi Amma. Like wise on 21.7.1994, an amount of Rs.35,228/- was shown as disbursed to the Gasman, Sri.S.Gopi and the signature of the said Gopi was also forged. PW2 testified that Sri.Gopi retired on 31.1.1994 and he had received P.F. amount on 22.3.1994, and then this amount was also misappropriated by the accused. The circumstances under which the misappropriation took place was explained by PW2. According to PW2, the admission for the Pre-degree course was going on from 22.6.1994 till 30.7.1994 in between 9.30 am to 6 p.m. During this period huge amounts were received in the College towards the special fee, Tuition fee of students, Insurance, caution deposit etc., the accused was the Head Accountant, in charge of these collections and he had collected the said amounts. Due to the pressure of work and paucity of time, PW2 could not check the accounts every day and he believed the accused and he entrusted the money and the cash book with the accused. While so, on 23.7.1994, PW2 got a free day without any rush of admission. So he started a periodical random check of the cash book, cash chest etc. He found deficit of more than Rs.80,000/- in the cash chest. When the same was questioned, accused stated that he failed to make some entries in the cash book and within two days he would make the said entries and submit the cash book. On 23.7.1994, accused submitted the cash book by making entry to the effect that an amount of Rs.46,170/- was paid to Smt.M.R.Saraswathi Amma and an amount of Rs.35,228/- was paid to Sri.S.Gopi and thus tallying the deficit amount. PW2 checked acquitted roll, bill book and other documents and found that there was some foul play and malpractice regarding the said endorsements. He immediately contacted Smt. M. R.Saraswathi Amma through telephone and understood from her that no such amount was received by her. He also verified and found out that Sri.S. Gopi retired on 31.1.1994 and he had already received the closure of P.F. amount on 22.3.1994. So according to him, the said amount was misappropriated by the accused by making false entries in the records by forging the signatures of Smt. M. R.Saraswathi Amma and Sri.S.Gopi.

It is very pertinent to note that when PW3 Smt.M.R.Saraswathi Amma was examined, she deposed that she had retired from service from S.N. College as Selection Grade Lecturer on 31.1.1994 and Ext. P33 is the Form No.2 order received towards PF closure for a total amount of Rs.1,62,355/-, and the PF closure date was 28.6.1995. Further she had emphatically denied receipt of Rs.46,170/-. Thus the version of PW2 in this regard is well substantiated and corroborated by the evidence of PW3. In addition to this, Ext. P34 is the communication issued to the Principal from the Director of Collegiate Education sanctioning the P.F. Closure amount of Smt. M. R.Saraswathi Amma. Ext. P35 is the acquittance register, covering the date 28.06.1995 showing that an amount of Rs.1,62,355/- was received by Smt.M.R.Saraswathi Amma and she identified her signature above the revenue stamp. When Exts.P21 and P22 the forged entries regarding the payment of Rs.46,170/-was put to PW3 she deposed that it was not her signature and it was forged. Thus the prosecution succeeded in proving that the accused made forged documents and used the forged documents as genuine, made false entries in the registers, altered or mutilated or falsified the records and misappropriated the amount of Rs.46,170/- and Rs.35,228/-.

It is submitted by the learned counsel for the accused/appellant that the amount due to S. Gopi and M.R. Saraswathi Amma as the amount under the Provident Fund were not misappropriated by the accused as he was not in charge of the P.F. Section. In this connection, Exts. P37 and P38, supported by the evidence of PW2 would assume relevance. As per Ext.P37, a letter issued by the accused addressed to PW2, as deposed by PW2, he admitted a deficit amount of Rs.79,280/- and agreed that he would remit back the said amount on or before 02.08.1994. PW4, who succeeded PW2, deposed that PW4 directed the accused to deposit the amount misappropriated and the accused submitted Ext. P38 application. He identified the signature of the accused and his signature in the said document. PW4 further deposed that as per Ext.P38, the accused sought permission to deposit an amount Rs. 14,000/- and promised to pay the balance amount within one month. Thus Exts.P37 would fortify the prosecution allegation regarding the misappropriation of the amount viz., Rs.79,280/- after getting entrustment of the amount by the accused.

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:

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:

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.

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

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).

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.

Tracing the ingredients of the offence punishable under Section 477A of IPC, Section 477A provides as under:

Section 344 of BNS is corresponding to Section 477A of IPC. The same reads as under:

The three ingredients to prove the offences are:

That at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity ;

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”.

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.

As per Section 13(1)(c) and (d) of the P.C. Act, 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.

Bearing in mind the ingredients to attract the offences, which are discussed herein above, the evidence evaluated in detail would show that the accused herein who was entrusted with Accounts Section as the head of the same had dealt with the Section and misappropriated the amounts found by the Special Judge, after getting entrustment of the amounts alleged to be misappropriated. Thus the finding of the Special Court that the accused committed the offenses punishable under Section 13(2) read with 13(1)(c) of the P.C. Act and under Sections 409, 465, 468, 471, 477A and 201 of the IPC is only to be justified and no interference with the conviction is found necessary. Therefore, the conviction is confirmed.

Coming to the sentence, the Special Court imposed rigorous imprisonment for one year for the offence punishable under Section 13(2) r/w 13(1)(c) of the P.C. Act, the minimum permissible as per the statute. The Special Court imposed the same sentence of rigorous imprisonment for one year each for the offence punishable under Sections 409, 468, 477A and 201 of IPC and six months each for Sections 465 and 471 of IPC. Thus the sentence, in fact is confined to the statutory minimum. Therefore, no reduction in sentence is possible.

In the result, this Criminal Appeal fails and is accordingly dismissed. Resultantly, the verdict impugned stands confirmed.

The bail bond executed by the appellant/accused shall stand cancelled. The order suspending sentence and granting bail to the appellant/accused stands vacated, with direction to the appellant/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 Enquiry Commissioner and Special Judge, Thiruvananthapuram, for information and further steps.