In the supreme court of india
Criminal appellate jurisdiction
Criminal appeal NOS.187-188 OF 2017;
8 December, 2022
State of Kerala
B.R. GAVAI; J.,
B.V. NAGARATHNA; J.
J U D G M E N T
B. V NAGARATHNA, J.
1. These Criminal Appeals have been filed assailing the impugned judgment and order dated 13.06.2016 passed by the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 947 and 948 of 2009 by which the judgment of conviction and order of sentence dated 27.04.2009 passed in C.C. No.24 and 25 of 2003 by the Court of the Enquiry Commissioner and Special Judge, Kozhikode (‘Trial Court’, for the sake of convenience) has been upheld by dismissing the aforesaid appeals and consequently confirming the conviction of the appellant herein.
2. For the sake of convenience, the parties shall be referred to as per their rank before the Trial Court.
3. The Trial Court vide its judgment and order dated 27.04.2009 in both the aforesaid cases convicted the appellant herein-accused for offences under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 (‘the Act’, for short) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The accused was further convicted for the offence under Section 409 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently.
4. The appellant herein was released on bail vide order of this Court dated 30.01.2017 subject to fulfilment of the conditions imposed by the Trial Court. Facts of the Case:
5. Succinctly stated, the case of the prosecution in C.C. No. 24 of 2003 is that while the accused was working as Agricultural Officer, State Seed Farm, Perambra, for the 2 period 31.05.1991 to 31.05.1994, he abused his official position as a public servant and committed criminal breach of trust and misappropriated an amount of Rs.20,035/-, during the period from 27.04.1992 to 25.08.1992, by not remitting the same to the Sub-Treasury, Perambra. The amount included Rs.17,449/-, being two-thirds of the proceeds received from the auction of 5510 coconuts harvested and auctioned on 28.05.1992 at the State Seed Farm, Perambra; Rs.2,098/- being two-thirds of the proceeds from the auction of 1049 kgs of half-filled grains auctioned on 28.05.1992; and Rs.488.80/- being the price of 104 coconuts harvested from the State Feed Farm, Permbra on 24.08.1992 and 25.08.1992 respectively.
6. The case of the prosecution in C.C. No.25 of 2003 is that while the accused was working as Agricultural Officer, State Seed Farm, Perambra, from 31.05.1991 to 31.05.1994, abused his official position as a public servant and committed criminal breach of trust and misappropriated an amount of Rs.58,671/- during the period from 01.03.1993 to 12.04.1994, being auction proceeds from the sale of 11,109 coconuts harvested from State Seed Farm, Perambra, auctioned on 23.07.1993; Rs. 12,290/- being the proceeds from the auction of 6,046 coconuts; Rs.11,844/- being the proceeds from the auction of 3,883 coconuts harvested from State Seed Farm, Perambra; Rs.654/- being the price of 160 coconuts harvested on 13.02.1992, 07.04.1993, 17.03.1994 and 12.04.1994, by not accounting for them and has thereby committed the aforesaid offences under Section 13(1)(c) read with Section 13(2) of the Act and Section 409 of the IPC.
7. It is prosecution’s case that prior to registration of these two cases against the accused, three other cases, being C.C. No. 12 of 1999, C.C. No. 13 of 1999 and C.C. No. 14 of 1999 were registered against him. In May 1994, a surprise inspection was carried out in the State Seed Farm, Perambra and the inspection team found that the cash book was not properly maintained and that the Agricultural Officer received amounts from the Treasury. The inspection report was submitted to the Director of Agriculture. On the basis of the said report, an enquiry was conducted by the vigilance department and a criminal case was registered against the accused on 05.02.1996. On completion of investigation, the Vigilance and Anti-Corruption Bureau submitted three reports and C.C. No. 12 of 1999 (for offences committed for the period between 28.03.1994 and 02.04.1994); C.C. No. 13 of 1999 (for offences committed for the period from 15.12.1992 to 31.03.1993) and C.C. No. 14 of 1999 (for offences committed for the period from 05.03.1994 to 08.03.1994) were registered against the accused under Section 13(1)(c) read with Section 13(2) of the Act and Sections 409 and 477A of IPC. The Accounts Officer conducted an audit in the State Seed Farm, pertaining to the period from 31.05.1991 to 31.05.1994 and gave a report. On the basis of the same, the two cases, out of which this appeal arises, were registered against the appellant herein. The FIR in respect of the present cases was registered on 03.12.2001. It is prosecution’s case that it was in the re-audit, that these instances were unearthed and therefore the two cases, C.C. No.24/2003 and C.C. No.25/2003, were registered against the appellant herein.
8. Charges were framed against the accused for the said offences on 30.06.2007 and the same were read over and explained to the accused to which the accused pleaded ‘not guilty’ and claimed to be tried. The accused filed an application for joint trial, being CMP No. 1019 of 2008 which was allowed and therefore both the cases were tried together. The prosecution examined a total of 13 witnesses. Thereafter, statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (‘CrPC’, for short) were recorded. The accused denied the allegations and submitted that he was innocent and had been falsely implicated.
9. It was the appellant’s case before the Trial Court and the High Court that during the period in question, he had additional charge of some other farms and had to heavily depend on his subordinates at the office to conduct the affairs of the State Seed Farm, Perambra. The appellant contended that he did not misappropriate any amount from the farm and has not committed any offence as alleged by the prosecution. Findings of the Trial Court:
10. The Trial Court vide judgment dated 27.04.2009, on considering the evidence of record convicted the accused for the offences under Sections 13(1)(c) read with Section 13 (2) of the Act and Section 409 of the IPC, holding that the accused misappropriated an amount of Rs.78,706/-, being two-thirds of the auction proceeds, without remitting it to the treasury during the period from 27.04.1992 to 25.08.1992 and from 01.03.1993 to 12.04.1994. The salient findings of the Trial Court can be epitomised as under: i. That it could be seen from the Attendance Register (Ext. P22) that the accused was an Agricultural Officer at the State Seed Farm, Perambra, during the period in question. The accused has also admitted the same in his statement under Section 313 of the CrPC. ii. That perusal of documents such as posting order of the accused as Agricultural Officer (Ext.P2), copy of report of transfer of charge of the accused (Ext.P3) and file containing posting details of the accused (Ext.P4) would prove that the accused was working as an Agricultural Officer in the State Seed Farm from 31.05.1991 to 31.05.1994, beyond any reasonable doubt. iii. That the accused was removed from service at the time of filing of the chargesheet, therefore there was no need for sanction under Section 19 of the Act. iv. That the accused conducted auction of agricultural products of the State Seed Farm, Perambra and collected one-third of auction amount on the date of auction itself. Receipt for the said amount was issued to the successful bidder. After collecting the remaining two-thirds amount, the articles were to be delivered to the auction purchaser. On 28.05.1993, 5510 coconuts were harvested and auctioned. The two-thirds of the auction amount was Rs.17,449/. The accused did not remit the said amount after collecting the same from the auction purchaser. v. That Rs.2,098/- being two-thirds of the proceeds from the auction of 1049 kgs of half-filled grains auctioned on the same date and Rs.488.80/- being the price of 104 coconuts harvested on 24.08.1992 and 25.08.1992 were also not remitted to the SubTreasury and the accused had misappropriated the said amounts for his own gain. Similarly, an amount of Rs.58,671/- was misappropriated by the accused from the auction proceeds of coconuts harvested from the State Seed Farm, Perambra from 01.03.1993 to 12.04.1994. vi. That the charges levelled in the present two cases were for the period from 27.04.1992 to 25.08.1992 and from 01.03.1993 to 12.04.1994. In the previous case, the accused had misappropriated some amount to be paid to the Proprietor, Agricultural Marketing Corporation, Kozhikode; Kerala State Coir Marketing Corporation, Kozhikode, from the State Seed Farm, Perambra by falsifying and forging the records. That the accused also misappropriated some amounts to be paid to Kerala State Cooperative Marketing Federation, Kozhikode. The said amounts were neither accounted in the cash book, nor were they disbursed to the beneficiaries. However, in the present case, after conducting the auction of coconuts and half-filled grains, two-thirds of the auction proceeds collected from the successful bidders were not remitted to the treasury. Therefore, the period of misappropriation and the nature of the offences committed by the 4 accused in the previous three cases and the present two cases were entirely different. The accused was thus convicted under Section 13(2) read with Section 13(1)(c) of the Act. vii. That the accused was the custodian of the cash, cash chest, cash book and other documents as the Agricultural Officer, State Seed Farm, Perambra and during his tenure and capacity as a public servant, he misappropriated the aforesaid amount for his own gain. The accused was therefore held to have committed breach of trust in respect of the property and thus convicted under Section 409 of the IPC.
36. On perusal of the testimonies of the aforementioned witnesses, what emerges is that there are vital discrepancies and inconsistencies in the testimonies of the prosecution witnesses. PW-5 in his testimony stated that he gave the amount to the appellant herein whereas in his cross-examination, he stated that he does not know to whom he handed over the money. As per the statement made by PW-11 in his cross examination, the staff of the Seed Farm used to handle the matters in absence of the officers therein. The testimony of this witness supports the case of the appellant herein since the appellant has also contended the same. PW-12 in his cross, examination has stated that he did not know the reasons as to why the cash book and other documents were not in office. PW-12 has no where stated that the same were in the custody of the appellant herein.
37. It is further the case of the appellant herein that the previous three cases, C.C. No.12, 13 and 14 of 1999 pertained to the period from 28.03.1994 to 02.04.1994, 11 15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994, respectively. Admittedly, the charge in C.C. No.24 of 2003 is for misappropriation of an amount of Rs.20,035/- during the period from 27.04.1992 to 25.08.1992; the charge in C.C. No.25 of 2003 is for an amount of Rs.58,671/-, allegedly misappropriated during the period from 01.03.1993 to 12.04.1994. It is appellant’s case that he has already faced trial in the previous three cases and the present two cases pertain to the same period. Section 300 of the CrPC places a bar wherein, a person who has already been tried by a Court of competent jurisdiction for an offence arising out of the same facts, and has either been acquitted or convicted of such offence cannot be tried again for the same offence as well as on the same facts for any other offence as long as such acquittal or conviction remains in force. The appellant herein was earlier charged for offences under Section 13(1)(c) read with Section 13(2) of the Act and Sections 409 and 477A of the IPC and was convicted in two cases and acquitted in one case. The present two cases arise out of the same set of facts and the same transaction as that in the previous three cases wherein the appellant was tried and convicted/acquitted respectively. As already discussed above, for an offence to be considered as the ‘same offence’ as the last offence, it is necessary to show that the offences are not distinct and the ingredients of the offences are identical. The previous charge as well as the present charge is for the same period of misappropriation. The matter of offences in all the previous three cases and the present case are the same and are said to be committed in the course of same transaction while holding the one and same post of Agricultural Officer by the appellant.
38. The Trial Court has erred in holding that the facts of previous case and misappropriation committed by the accused are not the same as the facts relevant to present case. The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed Farm, Perambra by forging and falsifying records. It is the admitted case of the prosecution that the present cases were based on the re-audit conducted by PW-9- the Assistant Sub-Inspector, Vigilance and AntiCorruption Bureau, Kozhikode. The re-audit was done for the period from 01.04.1992 to 31.12.1994. The charges in the present case are for relevant period from 27.04.1992 to 25.08.1992 and 01.03.1993 to 12.04.1994 which time period is same as in the previous three cases, that is, 28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 respectively. Thus, it can be said that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant herein was already prosecuted in the year 1999. The core allegation in all these five cases pertains to misappropriation by making false entries in the cash book. The allegation of the prosecution that two-thirds of the auction amount was not remitted to the treasury would be covered under the allegations of misappropriation of funds, that the appellant has already been prosecuted for in the year 1999. The appellant is right in contending that the charge in the first three cases were framed on 17.08.1999 which is much after the audit and the prosecution would have been well aware of the misappropriation in respect of the present cases on 17.08.1999.
39. The learned counsel for the appellant has also brought to the attention of this Court, sub-section (2) of Section 300 of the CrPC which states that a person acquitted or convicted of any offence may be tried thereafter, but with the consent of the State 12 Government, for any distinct offence for which a separate charge might have been framed against him under sub-section (1) of Section 220 of the CrPC. It has already been observed hereinabove that the allegations/offences in the instant cases are the same as the allegations/offences in the previous three cases, therefore as per the mandate under Section 300(2) of the CrPC, the consent of the State Government is necessary. Even if it is assumed for the sake of argument that the allegations are different in present cases from those in the previous cases, the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused-appellant and therefore the trial in the instant case is unlawful.
40. It would not be wrong to say that the charges framed against the accused reveal that there were several acts of misappropriation and falsification of accounts however the same were committed in the same transaction as the one for which he was prosecuted in the year 1999. The series of acts alleged against him are so connected to one another.
41. Sub-section (2) of Section 300 of the CrPC states that when the charge of the second trial is for a distinct offence, the trial is not barred. This means that if a person is acquitted or convicted of any offence, he may be tried for a distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220 of the CrPC but the same is subject to a condition precedent being, that the consent of the State Government is sought before such a person could be tried. Applying the said provision to the present case, it is noted that earlier the petitioner was tried in C.C. No.12 of 1999, C.C. No. 13 of 1999 and C.C. No.14 of 1999 for the offences under Section 13(1)(c) read with Section 13(2) of the Act as well as under Sections 409 and 477A of the IPC. In C.C. No. 24 of 2003 and C.C. No. 25 of 2003, the appellant is being tried once again for the offences under Section 13(1)(c) read with Section 13(2) of the Act and Section 409 of the IPC for the same period. There is no material on record to demonstrate that C.C. No.24 of 2003 and C.C. No.25 of 2003 have been initiated pursuant to the consent of the State Government. It is also not brought on record that the C.C. No.24 of 2003 and C.C. No.25 of 2003 is for any distinct offence for which a separate charge had been made against the appellant and the earlier trials. (a) Having re-appreciated the evidence of the witnesses and on considering the contentions of the rival parties, we find that the High Court was not justified in affirming the judgment of conviction and sentence passed by the Trial Court. (b) In view of the aforesaid discussion, we find that the Trial Court as well as the High Court were not right in convicting and sentencing the appellant herein and therefore, the impugned judgments are liable to be set aside.
42. In the circumstances, we find that the initiation of C.C. No.24 of 2003 and C.C. No. 25 of 2003 are not in accordance with law and hence, the said proceedings are quashed. Consequently, the judgment of the Special Judge, Kozikhode in C.C. No.24 of 2003 and C.C. No.25 of 2003 and of the High Court of Kerala at Ernakulam in Criminal Appeal Nos.947 and 948 of 2009 are set aside.
The appeals are allowed in the aforesaid terms. Pending application(s), if any, shall stand disposed of. No costs.
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