1. The three accused who faced trial before the Enquiry Commissioner and Special Judge, Thrissur, and convicted of the offences under sections 13 (1) (c) and 13(1)(d) r/w 13(2) of P.C. Act 1988 and sections 120-B, 409, 468, 471, 477A and Section 204 of IPC are the appellants in these appeals. They were sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs.50,000/- each for the offences under sections 13(1)(c) and 13(1)(d) r/w 13(2) of P.C. Act. Besides they were also sentenced to various terms of imprisonment for other offences for which they were found guilty and convicted.
2. Criminal Appeal No:554/2001 is the appeal filed by accused nos.2 and 3 in the aforesaid case and Criminal Appeal No.555/2001 is the appeal filed by accused no.1 in that case. The first accused was the Secretary and the second accused was the President of Erattayar Grama Panchayath. The third accused was then working as Upper Division clerk in that Panchayath. It was alleged that the aforesaid three accused persons entered into a criminal conspiracy in 1995 to misappropriate a sum of Rs.57,500/-. The amounts were allotted to the Panchayath under the Jawahar Rozgar Yojana (JRY) scheme for the works to be carried out under that scheme.
3. It was alleged that the aforesaid three accused persons, in persuance of the criminal conspiracy, prepared false cheques and committed criminal misappropriation in respect of the amounts covered by the three cheques - Exhibits P15, P16 and P17, amounting to a total of Rs.57,500/- and for that purpose they also committed falsification of the accounts and destroyed the cash book and relevant records in order to facilitate obtaining of pecuniary advantage to the tune of the amount covered by the aforesaid three cheques and also forged documents and made use of such forged documents knowing it to be forged for the purpose of obtaining pecuniary advantage. It was alleged that they abused their official position and obtained the pecuniary advantage by corrupt or illegal means. Based on the report of preliminary enquiry the F.I.R. was registered. After conducting investigation final report was filed.
4. PWs 1 to 11 were examined and Exts P1 to P32 were marked. Exts D1 to D3, D3(a) and D3(b) were marked on the side of the defence. Ext P21 is the sanction order issued by PW8 as per which sanction was accorded to prosecute A1 and A3. At the time of taking cognizance A2 was not the President of the Panchayath. The fact that A1 was the Secretary of the Grama Panchayath and A3 was the Upper Division Clerk at the relevant time was not in dispute. Similarly, it was also not disputed that A2 was the President of that Grama Panchayath at the relevant time.
5. Accepting the evidence adduced on the side of the prosecution, the court below found the appellants guilty of the offences as mentioned above and thus they were convicted and sentenced.
6. The learned counsel for the appellants would submit that there is no legal evidence to hold that the petitioners committed criminal breach of trust or misappropriation of any amount. It is also contended that there is no legal evidence to show that the petitioners committed forgery of any receipts, cheques or other documents and as such the conviction and sentence passed against them are unsustainable.
7. The points for consideration are:
(i) Whether the conviction of the accused/appellant is vitiated for want of sanction under section 19 of P.C. Act, 1988 and sanction under section 197 of Cr.P.C. and also sanction under section 248 of Kerala Panchayat Raj Act?
(ii) Whether the accused entered into criminal conspiracy for committing misappropriation of the amount allotted to the Panchayat under the J.R.Y. scheme?
(iii) Whether the accused, by abusing their official position or by corrupt or illegal means obtained pecuniary advantage of Rs.57,500/- either for themselves or for any other person as alleged by the Prosecution?
(iv) Whether the accused dishonestly or fraudulently misappropriated or otherwise converted for their own use the amount entrusted to them or which was under their control as public servants?
(v) Whether the accused committed criminal breach of trust and committed forgery of the receipts and other documents for the purpose of cheating?
(vi) Whether the accused used any such forged documents as genuine knowing the same to be forged documents and whether the accused falsified the account for the purpose of misappropriation of the amount?
(vii) Whether the accused destroyed the documents/records in order to prevent the production of those documents or being used as evidence before Court?
(viii) Whether the conviction and sentence passed against the accused/appellant are liable to be set aside or varied on any of the grounds urged by the appellants?
Point No.(i)
8. The learned senior counsel appearing for the appellants has relied upon the decision in Chairperson, Kanhangad Municipality Vs. State of Kerala 2012 (2) KLT 846 in support of their submission that the prosecution is not sustainable since no sanction under the Kerala Panchayat Raj Act was obtained. It is pointed out that Section 248 of Kerala Panchayat Raj Act, 1994 is corresponding to section 548 of Municipality Act, 1994. Section 548 of Municipality Act reads thus:
"Where the Chairperson, any Councillor or the Secretary of a Municipality is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government."
Section 248 of Kerala Panchayat Raj Act reads thus:
"When the President, Vice-President, Chairman of a Standing Committee or any member of a Panchayat or the Secretary or other employee of the Panchayat who is not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of Government."
Section 197 of the Code of Criminal Procedure which is also relevant reads:
"(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to Act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction –
(a) ........
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:"
(other clauses omitted as unnecessary)
9. In the decision cited supra it was found that the petitioners therein were arrayed as accused in their official capacity and not in their individual capacity. There the accusation itself was nothing but alleged to have been committed by the accused therein while acting or purporting to act in the discharge of their official duties. It was also found that petitioners 1 and 4 therein, the Chairperson of the Municipality and Standing Committee Chairman for Health may not come under the definition of 'public servant' as defined under section 21 of Indian Penal Code. Petitioners 2 and 3 therein, namely the Secretary and Health Supervisory would come within the definition of 'public servant' as defined under section 21 of Indian Penal Code.
10. It is vehemently argued on behalf of the appellants that since no sanction under section 197 of Cr.P.C. and section 248 of Kerala Panchayat Raj Act was obtained, the prosecution cannot be sustained. The difference in the words used in section 248 of Panchayat Raj Act on the one hand and section 197 of Cr.P.C. on the other hand cannot be lost sight of, the learned Public Prosecutor, Smt. Jasmine argues.
11. The protection under section 197 of Cr.P.C. is available not only to a person who 'is' a public servant at the time of taking cognizance of the offence but also to a person who 'was' a public servant. Section 248 of Kerala Panchayat Raj Act, 1994, is clear on the point that the protection thereunder is available to the President, Vice- President, Chairman of Standing Committee or any member of a Panchayat or the Secretary or other employee of the Panchayat if he 'is' accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It does not apply to a President, Vice-President, Secretary or other employee who 'was' a public servant. In other words, in order to put forward a plea of protection under section 248, the President, Secretary or other employee should be in office at the time of taking cognizance.
12. Section 248 mentioned above is identical to section 122 of Kerala Panchayat Raj Act. It was held by the Hon'ble Supreme Court in State of Kerala V. Manikantan Nair 2001(3) KLT 80, while considering the plea raised under section 122(1) of Kerala Panchayat Raj Act, as:
"The language of section 122 is clear and unambiguous. Sanction to prosecute the President, Executive Authority or members of a Panchayat is necessary for prosecution of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. If a person ceases to hold the above office on retirement or otherwise no sanction for prosecution is necessary. The petitioner who retired from the service could not claim protection under this section as he ceased to hold the post under the Panchayat."
(underlined by me to lay emphasis)
13. Here, admittedly A2 was not the President of the Panchayath when the cognizance was taken. Since he ceased to hold the office no sanction for prosecution is necessary under section 248 of Kerala Panchayat Raj Act, 1994. In view of the dictum laid down by the Honourable Supreme Court cited supra, the argument advanced on behalf of the petitioner relying on the decision in Kanhangad Municipality cited supra cannot be accepted.
14. But so far as the requirement of sanction under section 197 of Cr.P.C. is concerned, so far as it relates to public servant coming under section 21 of IPC, since the expression 'was' also is employed after the expression 'is', the requirement of sanction under section 197 of Cr.P.C. would arise even in cases a retired public servant is sought to be prosecuted provided the offence committed is part of the official duty. But so far as A2, the Ex-President is concerned the requirement of sanction under section 197 of Cr.P.C. does not arise at all because he is not a public servant coming under section 21 of IPC.
15. The learned Public Prosecutor, Smt. Jasmine would submit that the expression 'official duty', employed in section 197 of the Code, implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The protective umbrella is not available to cover up any and every act or omission done by a public servant in service. It restricts its scope of operation only to those acts or omissions which are done by a public servant in discharge of his official duty. Smt.Jasmine would submit that committing criminal breach of trust, mis-appropriation and forging or fabrication of documents are not acts which can come within the protective umbrage of section 197 of Cr.P.C. In the case on hand it can be found that the act or omission of A1 and A3 had no reasonable nexus with the discharge of duties of such public servant, argues Smt.Jasmine.
16. Accused nos.1 to 3 are public servants as defined under section 2(c)(xii) of Prevention of Corruption Act, 1988. It is important to note that PW8 who was the Director of Panchayat had accorded sanction to prosecute A1 and A3 as evidenced by Exhibit P21. The 2nd accused, who was the President, was not in office at the time when cognizance was taken. Therefore, sanction under section 19 of P.C. Act, 1988, was not necessary to prosecute A2 who was the President but who was not in office at the time the cognizance was taken. Sanction as required under section 19 (1) (c) of Prevention of Corruption Act, 1988, was issued by the competent authority who was empowered to remove A1 and A3 from service. It has been so spoken to by PW8. That was not challenged also.
17. As regards the law on the question of sanction, the whole controversy was set at rest in R.S. Nayak V. A.R. Antulay (1984) 2 SCC 183 which was followed throughout till date. The ratio in all these decisions is that where the public servant had abused the office which he held during the relevant period but had ceased to hold that office, then sanction under section 19 under the provisions of Prevention of Corruption Act, 1988, is not necessary. See the decisions in Balakrishnan Ravi Menon V. Union of India (2007) 1 SCC 45, K. Karunakaran V. State of Kerala (2007) 1 SCC 59 and Habibulla Khan V. State of Orissa (1995) 2 SCC 437.
18. In the light of what has been stated above, I have no hesitation to hold that sanction under section 19(1)(c) of Prevention of Corruption Act, 1988 was issued to prosecute A1 and A3. No sanction to prosecute under the provisions of Prevention of Corruption Act, 1988, was required to prosecute A2 since as on the date of taking cognizance he was not the President of Irattayar Grama Panchayat. It is also held that no sanction under section 248 of Kerala Panchayat Raj Act was required to prosecute the 2nd accused, since he was not in office on the date when the cognizance was taken.
19. The only other question that survives for consideration is whether sanction under section 197 of Cr.P.C. or section 248 of Kerala Panchayat Raj Act was required to prosecute A1 and A3. It is argued by Smt.Jasmine, learned Public Prosecutor, that with regard to offences under sections 409, 120B, 406, 468, 471 and 477A etc, no sanction under section 197 of Cr.P.C. is required, since entering into criminal conspiracy, committing criminal breach of trust or misappropriation, falsification of accounts or creating forged documents in order to cheat the authorities are not part of the duty of a public servant. In support of her submission, she has relied upon the decision of the Supreme Court in State of Kerala V. V. Padmanabhan Nair 1999 CRI. L.J. 3696. It was held in that decision thus:
"That apart, the contention of the respondent that for offences under sections 406 and 409 r/ section 120-B of the IPC sanction under section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli V. State of Bombay, AIR 1955 SC 287 : (1955) Cr. LJ 857) and also Amrik Singh V. State of Pepsu, AIR 1955 SC 309 : (1955 Cri. LJ 865) that it is not every offence committed by a public servant which requires sanction for prosecution under section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties.
"As far as the offence of criminal conspiracy punishable under section 120-B r/w section 409 of IPC is concerned and also section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under section 197 of the Code of Criminal Procedure is, therefore, no bar."
20. In the aforesaid decision it was also held that section 406 and 409 of IPC are cognate offences in which the common component is criminal breach of trust. It was further held:
"When this Court held that in regard to the offence under section 409 of IPC r/w section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under section 406 r/w section 120-B of IPC it would make all the difference vis-a-vis section 197 of the Code."
21. It was also held by the apex Court in State of Himachal Pradesh V. M.P. Gupta 2003 AIR SCW 6887 thus:
"Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of the official duty."
22. The decision in Unni Rajan V. State of Kerala and Another - 2012 (2) KHC 707 has no application to the facts of this case. That was a case where the allegation was that the Police Officer had assaulted the accused at the time of interrogation. There was no material to hold that the Police Officer had assaulted the accused. It was held that even assuming that the police officer so assaulted, it was said to have been done while the officer was discharging his official duties. The fact situation obtained in that case is totally different.
23. In Prakash Singh Badal and Anr. V. State of Punjab and Ors AIR 2007 SC 1274, it was held:
"The offence of cheating under section 420 or for that matter offences relatable to sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
24. The principles of law enunciated in the aforesaid decisions, though were rendered while interpreting section 197 of Cr.P.C., the same principle applies to the acts done by A1 and A3 who were public servants, as the act of committing forgery, falsification of accounts, misappropriation etc cannot be said to be done while they were actually engaged in the performance of their official duties. Even if it is assumed, for the sake of argument, that as against A1 and A3 sanctions under section 197 of Cr.P.C. and section 248 of Panchayat Raj Act were required to prosecute those accused persons for offences under sections 468, 417, 409 etc, still the conviction of the appellant for the offences under sections 13(1)(c) and 13(1)(d) r/w 13(2) of P.C. Act is not affected, since to prosecute those accused persons for the offences under the P.C. Act sanction was accorded by the competent authority, namely, the Director of Panchayats. No sanction was required to prosecute A2 as he was not in office at the time of taking cognizance.
Point Nos.(ii) to (viii)
25. PW9 was the Head Clerk of the Panchayath during the period from 18.5.1993 to 04.5.1995. Her evidence would show that she had handed over charge of the Head Clerk to the 3rd accused as evidenced by Exhibit P22(a). Again she was later posted in that Panchayath as the Secretary. She worked in that capacity in that Panchayath from 26.7.1995 to 24.12.1996. Exts P23 and 23(a) are the relevant portions which would show that she had taken charge as the Secretary from the 1st accused who was her immediate predecessor-Secretary. Exhibits P16, P17 and P15 cheques were issued on 12.6.1995 (25.3.1995 as shown in the counter foil), 20.6.1995 and 4.7.1995. Those transactions took place when A1 was the Secretary and A3 was the Clerk and A2 was the President.
26. PW2 was the Head Clerk of the Panchayath from 28.12.1995 onwards. That means PW2 was not there during May, June and July, 1995 when the transaction covered by Exhibits P15 to P17 took place. It was testified by PW2 that there was no proper cash book in the Panchayath office at the relevant time. Though there were some entries in the ledger maintained in the Panchayath that was not sufficient as was observed by the inspection team who had to give instruction to PW2 and other officials as to the necessity of maintaining a cash book. It was further stated that based on that instruction issued by the Inspection team a cash book was opened for the purpose of showing the transaction under the JRY scheme.
27. It was stated by PW2 that there was a file relating to the contingent bill vouchers. According to him, it was kept as a file. He would further say that it was A2 who was to maintain that file. He would assert that the said file was seen by the inspection team and that file was available in the office till he was transferred from that office. But thereafter, he did not see that file. It was stated that it was the Section Clerk who was directly responsible for the records. But he would further assert that it was the Secretary who was to have overall supervision. It was further testified by him that when he took charge from A3, there was no cash book for the JRY Accounts, but there was a JRY work register and that alone was made available. It was also stated by him that when the charge list Exhibit P1 was prepared by him there were no vouchers for JRY.
28. The fact that Exts.P15, P16 and P17 were encashed on 04.08.1995, 12.06.1995 and 20.06.1995 respectively was not seriously disputed by the defence. The evidence to that effect given by PW3, the Secretary of the Service Co-operative Bank, was not controverted by the defence.
29. PW4 was the nominee of the work relating to the construction of culvert-slab in Ward No.IX of Irattayar Grama Panchayath. He did not support the prosecution and as such he was cross-examined by the learned prosecutor after seeking permission of the court. The defence wanted to rely upon the evidence given by PW4. To support their contention, PW4 admitted that he had received the amount covered by the vouchers in respect of which the cheque was issued to him. Though it was stated by him that he had signed on the counterfoil of the cheque issued to him when the counterfoil of cheque No.013038 (Ext.P17) was shown to him he had to admit that his signature is not seen on the counterfoil for having received Ext.P17, cheque. The defence wanted to contend that PW4 to whom the cheque was to be issued had actually received the cheque and it was encashed by him and so the charge against the accused cannot be sustained. But PW4 had to admit that he had told the police during investigation that the signature on the reverse of the counterfoil of the cheque was not the one put by him. Similarly, it was also admitted by him that when he was questioned by the police he had admitted that he had not signed on the counterfoil mentioned above nor did he receive the original cheque (Ext.P17). But before court he has stated that the signature found on the reverse of Ext.P17 was that of his and he also says that he had received Rs.2,500/- covered by that cheque. He also wanted to contend that during 1992-93, the amount for the work mentioned earlier was spent by the first accused and that the amount of the cheque mentioned above was entrusted by him to A1. The learned prosecutor would submit that this evidently was only a distorted version given by PW4 with intent to steal a march on the court, if not to outwit the prosecution. Though it was contended by him that the measurement book (M Book) would show the work actually carried out and that bills were prepared based on the work entered in the M Book, he admits that he did not enter in the M Book the work pertaining to the cheques in question which also, according to prosecution, would show that the bill was not prepared after ascertaining the actual work if any done. On going through his evidence as aforesaid and on comparison of his signatures in the deposition sheets and the signature purported to be of his found on the reverse of the cheques and the counterfoil it could be seen that what he deposed in court on that point is an utter falsehood. It seems the defence made him to perjure under the fallacious promise that they can hoodwink the court.
30. PW5 was examined by the prosecution to prove the handwriting and signature of A3. PW5 was the L.D. Clerk of that Panchayath who used to collect tax and entrust the same to A3. It was stated by him that he knows the signature, handwriting and initial of A3.
31. PW6 was the Senior Superintendent of Deputy Director of Panchayath, who headed the inspection/audit conducted in the office of the Irattayar Grama Panchayath. Ext.P19, the file pertaining to the same was marked through him. It was stated by him that irregularities noted by him and his inspection party with regard to the amount spent by that Panchayath under JRY Scheme were mentioned by him in detail in the report. The fact that PW6 and Inspector Vijayan and one Sukumaran had conducted the audit/inspection is not seriously in dispute. PW6 has stated that in Page 21 to 23 of Ext.P19, it was specifically noted by him that the entry to the effect that A3 had conducted a travel/tour on 04.08.1995 was subsequently inserted in the relevant page. He has also stated regarding the 'Charge handing over report' given by PW9 Smt.Annamma to the third accused. It was contended by the defence that the report was incomplete as regards the work done or amount spent under JRY Scheme. It was also contended that PW6 has no direct knowledge as to whether corresponding vouchers were actually available but that contention is countered by the prosecution stating that there was a note prepared by Vijayan (PW7), the other member of inspection team. Evidence regarding the same was given by PW6 and PW7. The evidence given by PW6 and PW7 would show that in spite of the direction issued or request made by them the corresponding relevant documents pertaining to Exts P15 to P17 cheques were not made available by the accused. The contention that the accused were not responsible for making available those records cannot be accepted since it was the duty of the accused A1 and A3 to maintain the records regularly and properly and to make available the same at the time of inspection. Those files were not made available at the time of investigation also. There is no entry anywhere in the register and files produced to indicate that any such file/documents were made available. That inspection was conducted long prior to the Vigilance enquiry and investigation. A proceeding should have been there for passing the bill for payment of the money covered by the vouchers. Nothing of that sort was there. Therefore the contention raised by the accused that the files were actually available cannot be countenanced for a moment.
32. PW9 Smt.Annamma, was the Head Clerk of the Panchayath from 18.05.1993 to 04.05.1995. She was also the Secretary of the Panchayath during the period 26.07.95 to 24.12.96. It was sworn by her that she had handed over her charge to the third accused. Ext.P22, is the true photocopy of that 'charge handing over report'. It was further stated by her that she had handed over all the records pertaining to the work done under JRY Scheme. The fact that there is a copy of Ext.P22 in the file (Ext.P19) prepared by PW6 would also ensure the correctness of Ext.P22, the prosecution contends.
33. Ext.P23 is the charge report when PW9 subsequently took charge from A1. The prosecution also relies upon the evidence given by PW9 that there is a report prepared by PW9 (Ext.P24) which would show that the cheque books relating to the work of JRY Scheme were entrusted to A1. It was contended by the defence that, it was, in fact, PW9 who should be made responsible for the alleged irregularities. The fact that memo was issued to PW9 pertaining to that aspect is also highlighted by the defence to contend that PW9 cannot feign ignorance of the same. PW9 has stated when memo was issued to her, as evidenced by Ext.P25(a), proper reply [Ext.P25(b)] was given by her. It was further stated by her that the work under the JRY Scheme was done at the relevant time by A3. It was also stated that it was A3 who used to maintain and keep the pass book, cheque book etc. pertaining to the JRY work. She was also examined to state that Ext.P16 contains the handwriting and signature of A1 and A2. Though PW9 was subjected to incisive cross-examination, her evidence that she had handed over the records to A3 remained unshaken. The fact that an entry to that effect was found in Ext.P22 also strengthened the statements so made by PW9. When PW9 was examined an attempt was made by the first accused to the effect that there was a practice of the Secretary signing the cheque leaf in advance. But that suggestion was denied by PW9. Not only that such a contention cannot be accepted by the court. Being the Secretary of the Panchayath, she cannot sign cheque leaves in advance. The cheque can be written up only after the bill was prepared, checked and passed and only thereafter the amount shown therein and the person to whom it is payable can be written up in the cheque by the concerned clerk and it has to be verified by the Secretary (A1) before signing the same. It is in that way, the cheque has to be signed by A2, President also.
34. Ext.P16 cheque bearing No.013036 is shown to be dated 25.03.1995. The amount therein was shown as Rs.25,000/-. Ext.P14(a) is its corresponding counterfoil, where the date was written as 12.06.1995. The name of the payee in Ext.P16 is written as Thomas Augustine whereas the name of the payee in Ext.P14(a) is seen written as Thomas Augusty. In Ext.P14(a), the amount in figure though is seen written, it was not written in words. It is important to note that the date, name of the payee and the amount in Ext.P14(a) were written in a different handwriting, evidently, at a different point of time. The date in Ext.P14(a) could not have been written as 12.06.1995 had the counterfoil of Ext.P16 been written then and there, at the time of issuance of Ext.P16. As stated earlier, there could not have been different handwriting in Ext.P14(a) had it been a true transaction. In Ext.P2 Pass book, the amount covered by Ext.P16 was shown to have been encashed on 12.06.1995.
35. Ext.P17 is the cheque bearing No.013038. The date shown therein is 20.06.1995. The amount shown is Rs.2,500/-. It was shown to have been issued to Thomas Thomas. Ext.P14(b) is the corresponding counterfoil of Ext.P17. Though, in the counterfoil also the date is shown as 20.06.1995 and the name of the payee is shown as Thomas Thomas and the amount is shown as Rs.2,500/-, it is curious to note that the handwriting in Ext.P14(b) is not that of the person who wrote Ext.P17. That apart, on a perusal of Ext.P14(b) it can also be seen that it was written at a different point of time. Not only that, there is no initial or signature of the Secretary, or any other official of the Panchayath. On the reverse of other counterfoils the signature of the party (payee) are seen but on the reverse of Ext.P14(a) there is a scribbling purported to be of the payee, but no such signature appears on the reverse of Ext.P14(b). There is evidence to show that the usual practice is to obtain the signature of the party, to whom the cheque is issued, on the reverse of the counterfoils of the cheques. Thus, the absence of any such signature on the reverse of Ext.P14(b) and the absence of signature or initial of the officer, who issued the cheque in Ext.P14(b) would also speak volumes as to the illegal way the cheques were issued from the Panchayath. Ext.P2 Pass book shows that Ext.P17 cheque was encashed on 20.06.1995.
36. Ext.P15 is the cheque dated 21.07.1995 where the name of the payee is shown as Thomas Augustine. The amount shown therein is Rs.30,000/-. The corresponding counterfoil of this cheque bearing No.013040 is Ext.P14(c). There the date of the cheque is shown as 04.07.1995 and the amount in figure is shown as Rs.2,000/-. The amount in words is not noted at all. There the name of the payee is shown as Antony Joseph. The signature or initial of the officer of the Panchayath who issued Ext.P15 is not seen in Ext.P14(c). As said earlier, if the cheque was issued to the person named in Ext.P14(c) then certainly his signature should have been obtained on the reverse of Ext.P14(c). The very fact that the name of the payee shown in Ext.P14(c) is different from the name of the payee in Ext.P15 would also lead to the inescapable conclusion that the entire transaction was illegal and that no money was paid to the persons to whom the amount were purported to have been paid by way of cheques. The entry in Ext.P2 Pass book would show that the amount of Rs.30,000/- covered by Ext.P15 was encashed on 04.08.1995. The difference in the amount shown in Exts.P15 and P14(c) and the difference in the name of the payee as well as the difference in the dates also could not be explained by the accused.
37. Ext.P1 is stated to be cash book pertaining to the amount spend under the JRY Scheme. Though in Ext.P1(b) entries are seen relating to the two payments covered by Exts.P16 and P17, no corresponding entry is seen pertaining to the sum of Rs.30,000/- paid as per Ext.P15. It seems subsequently an entry was inserted in Page No.11 of Ex.P1 to the effect that "uncashed cheque was cashed on 04.08.1995". That apart, the total illegality and incorrectness in the issuance of the chque, the amount shown therein, the difference in dates and the name of the payee etc. which are loudly obtrusive on the face of the records would cast heavy burden on the accused to explain how such illegalities and irregularities happened to be there.
38. Ext.P10 is the file containing the office notes and the proceedings of the Panchayath, which is of the year 1993, 94 and 95. There is no case for the defence that there was any proceedings pertaining to the disbursement of the amount covered by Exts.P16, 17 and 15 are seen in this file. Admittedly, no such proceedings could be seen in Ext.P10.
39. Ext.D1 is the charge handing over report dated 1.1.1996 which would show that A3 had handed over 11 items of files, registers etc. maintained in the office of Erattayar Grama Panchayath. It was specifically noted by PW2, the Head Clerk who received the charge from A3 that he had received the items mentioned therein except the vouchers for the months of May, June and July 1995. Therefore, A3 cannot feign ignorance regarding the non- handing over of the files/vouchers relevant for the purpose of this case. These were the vouchers which were not available at the time of the inspection conducted by PW6 and PW7.
40. Ext.P22 is the copy of the charge handing over report dated 4.5.1995 as per which Smt. P.A. Annamma (PW9) handed over the files and registers including those of JRY works to the 3rd accused. The endorsement shows that A3 had received all the items mentioned in Ext.P22 which takes in all the registers and files relating to JRY works. Ext.P22(a) is the endorsement made by A3 on that date for having received the records mentioned above. Ext.P24 is the copy of the letter sent by PW9 on 27.7.1995 to the District Panchayath Officer as per which the latter was informed by PW9 that she had taken over charge as the Secretary of the Grama Panchayath on 26.7.1995 and that she had not been handed over the accounts and other papers relating to the JRY works. It was specifically noted that the cheque book and the account books of JRY works were not handed over to her. Therefore, it is idle for A3 to contend that he was not handed over the files handed over to him by his predecessor nor can he successfully contend that the files which were received by him were handed over to his successor. This also would indicate that there were no vouchers, files or M-Book or bills corresponding to Exts.P15 to P17. In other words, there is nothing to show that any work was carried out or any amount was paid to any such persons for the work alleged to have been carried out. That would further prove the case of the prosecution that the amounts covered by Exts.P15 to P17 were got encashed by the accused persons- A1 to A3 or that the three cheques were prepared and got up by the accused and encashed the same on the dates mentioned therein.
41. Ext.P27 is the JRY Work Register maintained in the office of that Panchayath. This register should, in the normal course, show the entries corresponding to Exts.P15 to P17. It is also seen that so many pages in this register were kept blank. It is also seen that in page No.73 though a sum of Rs.2,500/- was shown as the advance payment made on 2.6.1995, no corresponding entry was seen thereafter. It is also pertinent to note that the said sum of Rs.2,500/- was not the amount paid to any of the persons shown as the payees in Exts.P15 to P17. As said earlier there are no entries in this register corresponding to Exts.P15 to P17. That also strengthens the case of the prosecution that no work under the JRY scheme was carried out nor was any payment effected for any such work. The conspicuous absence of files pertaining to the JRY work and the absence of vouchers and files showing the work if any carried out would speak volumes, (which should show the measurements of the work specifically, the entries in the M-Book and the payments to be effected to the parties) would also demolish the case of the defence that the works were carried out and the amounts were paid to the respective persons shown in Exts.P15 to P17. It is in this connection, the inspection note contained in page 21 and the succeeding pages in Ext.P19 assumes importance. It was specifically noted by the inspection team that corresponding vouchers and files were not made available at the time of inspection. Since it was done at an undisputed point of time the contention that the files were actually available but those files were not made available for inspection does not gain ground.
42. Ext.P12 is the details of JRY works in which payments made from 1.1.1995 to 31.12.1995 are shown. Ext.P13 is for the subsequent period. These two statements were furnished by the Secretary of that Grama Panchayath. Ext.P12 does not show any payment having been made to the three persons named in Exts.P15 to P17 or the numbers of those three cheques. That also would strengthen the case of the prosecution that no work was carried out under JRY Scheme and no payment was legally made to the three persons shown in those three cheques.
43. It was argued by the learned counsel for the appellants that the accounts of the Panchayath were audited by the Local Fund Audit. Besides, there was internal audit also. CW13, a private Chartered Accountant had audited the accounts of the Panchayath. But he was not examined. It is argued on behalf of the defence that the officials of the Local Fund Audit did not report any misappropriation of account and as such the court below should not have accepted the case of the prosecution that there was misappropriation of the amounts covered by Exts.P15 to P17. The question is not whether the Chartered Accountant or the officials of the Local Fund Audit had found out the misappropriation or not but whether any such work under JRY Scheme was carried out and whether the amounts covered by Exts.P15 to P17 were actually the amounts which were payable for any such work carried out and whether the amounts were in fact paid to the persons named therein, for the work alleged to have been done, whether it was the construction of convert slabs or any other work. The work register should contain the nature of the work entrusted to be done. The M-Book must contain the corresponding entries regarding the work carried out if any. There is no such entry in the work register nor was the M-Book made available. The files maintained in that Panchayath have already been adverted to by me. There is no entry in any of the files relating to the work corresponding to Exts.P15 to P17. Had any such work been entrusted or carried out to the persons named therein or any work had been carried out, then there should be entries in the M-Book and there should be a file showing the vouchers if any produced by such contractor or person and who had carried out the work and there should be an office note with reference to the entries in the M-Book as to whether any such work had been carried out and if so, what was the amount payable. That bill has to be first passed and then, based on that bill, after obtaining advance receipt from the party, an order should have been passed allowing issuance of cheque for the amount payable to the said party and there after if the cheque had been issued to the party, there should have been entry relating to the same showing the cheque number, the amount, the date of the cheque and other particulars. Though the files produced and made available would show entries relating to other works carried out under the JRY Scheme, there is no entry in any of the files to show that any such work had been done and any amount for the said work had been paid to any such persons.
44. Much was argued by the learned counsel for the appellants that Exts.P15 to P17 were not sent for the expert opinion to prove the handwritings and signatures seen therein. It is not always necessary to obtain the opinion of an expert. Under Sec.47 of the Evidence Act, any person who is acquainted with the handwriting or signature of another can give his opinion as to the identity of the handwriting or signature. A person can be acquainted with the handwriting of another person, when he has seen that person write; when he has received communication purporting to be written by that person in answer to documents purported to be written by himself, all though neither of them saw each other sign; and also when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him. The evidence which is relevant under Sec.47 of the Evidence Act has been led by PWs.1, 2, 5, 9 and other witnesses. They were the persons who had opportunity to see the documents containing the handwritings and signatures of the accused persons. The evidence to that effect given by those witnesses, after careful scrutiny of the same was accepted by the trial court. Therefore, the arguments to the contrary advanced by the appellants cannot be sustained.
45. Therefore, it can be found with certainty that A3, the Clerk who was dealing with the file relating to JRY and A1, who was the then Secretary of the Grama Panchayath and A2, the then President of the Grama Panchayath who issued those three cheques are equally responsible for the issuance of those three cheques. The facts and circumstances would clearly establish that there was a criminal conspiracy among those three accused persons and it was pursuant to that criminal conspiracy, the amounts covered by those three cheques were withdrawn/ encashed by those accused persons. For that purpose, they falsified the accounts of the Grama Panchayath. Further they also forged the signatures of the three persons named in those three cheques and making use of such forged documents they withdrew the amount. The President and Secretary were in-charge and were having domain or control over the JRY funds which were to be disbursed to persons or contractors eligible to get disbursement of the amount for the works carried out by them. It can also be found that without carrying out any work, those three cheques were prepared and with the help of A3 those cheques were signed by A1 and A2 and thus obtained pecuniary advantage, causing wrongful loss to the government. Since misappropriation to the extent covered by the amounts shown in Exts.P15 to P17 could be proved beyond any reasonable doubt, the conviction of the appellants for the offences under Sec.13(1)(c) r/w Sec.13(2) of PC Act, 1988 and also under Sec.409 IPC has to be confirmed. In short, the verdict of conviction passed against the appellants by the court below for the offences mentioned earlier is to be confirmed.
46. Learned counsel for the appellants would then submit that the sentence awarded by the court below is excessive and disproportionate. Considering all the aspects, I find that the substantive sentence awarded by the court below can be reduced to R.I. for one year each under all counts. Similarly, the amount of fine imposed by the court below can also be reduced to Rs.30,000/- each.
47. In the result, the conviction of the appellants for all the offences with which they were convicted by the trial court would stand confirmed. In supersession of the sentence awarded by the court below, the appellants are sentenced to undergo rigorous imprisonment for one year each on all counts. They are also sentenced to pay Rs.30,000/- (Rupees Thirty Thousand only) each as fine for the offence under Sec.13(1)(c) r/w 13(2) of P.C. Act, 1988. The substantive sentence will run concurrently. The court below will execute the sentence immediately.