State of Kerala has come up in appeal aggrieved by the judgment of the learned Enquiry Commissioner and Special Judge, Kozhikode, acquitting the respondent of charges under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, “the Act”) and Sections 409 and 477A of the Indian Penal Code (in short, “IPC”).
2. Case of the prosecution, in short, is as follows:
The respondent/accused, while working as cashier in Electrical Major Section, Mananthavady, of the Kerala State Electricity Board (in short, “KSEB”) misappropriated certain amounts and thereby committed the aforementioned offences. To substantiate the case, the prosecution examined 17 witnesses and marked 50 documents. Defence also marked two documents.
3. Heard the learned Public Prosecutor and the learned counsel for the respondent/accused.
4. It is an admitted case that the accused had studied only upto 5th standard. He entered the service as a line helper and gradually climbed up the rung and reached at the level of cashier in KSEB. The prosecution alleged specific instances of misappropriation against the accused. Considering the nature of allegations, the following points were raised by the trial court for decision. They are:
“(1) Whether the accused had collected sums of (1) Rs.1,232.10 from Consumer No.2788 on 21-10- 90, (2) Rs.226.40 from Consumer No.2137 on 14-11-
90, (3) Rs.1,490/= from Consumer No.1355 on 14-11- 90 and Rs.4409.20 from Consumer No.2809 on 14-11- 90, and failed to credit the above amounts to the account of the Kerala State Electricity Board, as alleged by the prosecution?
(2) Whether the accused committed misappropriation of an amount of Rs.9,292.15 by short accounting, as alleged by the prosecution?
(3) Whether the accused by corrupt or illegal means obtained for himself or any other person any pecuniary advantage, as alleged by the prosecution?
(4) Whether the accused committed falsification of accounts of the Kerala State Electricity Board for facilitating the misappropriation of the amounts referred to above, as alleged by the prosecution?
(5) What, if any, are the offences proved against the accused?
(6) What, if any, are the sentences to be imposed on the accused?”
5. Learned trial Judge after analysing the evidence found that they are insufficient to establish that the accused had collected various amounts and he failed to credit the said amounts to the account of KSEB. It is further found that the accused did not commit any misappropriation by short-accounting as alleged by the prosecution. On these findings, the accused was acquitted.
6. Learned Public Prosecutor contended that the court below did not correctly appreciate the evidence. Had the court below correctly appreciated the evidence, it would have seen that the accused was guilty of the offences alleged. PW14 at the material time was the Chief Engineer, who was the authority competent to remove the accused from service. He issued Ext.P48 sanction order for prosecuting the accused for the charges levelled against him. There is no challenge to the testimony of PW14. Therefore, I find that the prosecution was launched with proper sanction under Section 19 of the Act.
7. Before going into the evidence, it will be apposite to consider the undisputed nature of duties attached to the post of cashier. certainly the accused was working as cashier at the material time in the Electrical Major Section, Mananthavady. The above Major Section consisted of three centres, viz., Mananthavady, Panamaram and Vellamunda. Another man was looking after the affairs of Panamaram and Vellamunda. As mentioned earlier, the alleged misappropriation by the accused was by way of non- accounting the energy charges collected to the credit of KSEB. During the relevant period, the collection of electricity charges in the Mananthavady centre was being done by issuing pre-written receipts and by spot billing. We are only concerned with the issuance of pre-written receipts in this case. Going by the prosecution case, the system of collection of energy charges by issuing pre-written receipts was working in the following manner: The invoice, showing demand from the consumers and a receipt for the said amount, was prepared in a single form. Ext.D1 is the sample invoice produced by the accused. In the invoice, the amounts due from the consumer would be shown on the top portion of the form. The bottom portion of the form is the receipt. The receipt portion also will show the amount due from the consumer. Both the invoice and the pre-written receipt would contain the facsimile of the Junior Superintendent. Since the receipt is signed by the Junior Superintendent even before actual receipt of money, it is called a pre-written receipt. Billing Section of the concerned Electrical Major Section used to prepare the pre-written receipt. The receipts, after its preparation, would be handed over to the cashier. The cashier is expected to tear off the bottom portion of the receipt and keep it in his safe custody. The invoice portion would be handed over to the field staff for serving on the consumer. When the consumer comes with the invoice for remittance of the amount, the corresponding pre-written receipt, which the cashier kept, would be given to the consumer on collection of the amount. Prosecution contended that the cashier while giving the said receipt to the consumers, after receiving amounts, should put his initial and date of payment on the receipt. Thus, going by the prosecution case, only thing the cashier has to do is collection of the amounts shown in the invoice and put his initial and date on the receipt. On collection of the amounts by the cashier, he will have to enter the same in a sheet called daily collection statement. All the amounts collected by the cashier on a particular day along with the daily collection statement should be entrusted to the Junior Superintendent, who in turn would make necessary arrangements for remitting it in the bank.
8. PWs 4 and 6 are the star witnesses for the prosecution. At the material time, PW4 was working as Superintendent in the Electrical Major Section, Mananthavady. PW6 prepared Ext.P44 inspection report as he was authorised to enquire into the irregularities allegedly committed by the accused. Testimony of these two witnesses were relied on by the learned Prosecutor to contend that the court below did not properly consider the evidence regarding misappropriation. Through PW4, Exts.P23 to 26 demand notices were proved. According to PW4, these notices contained the hand writing and initial of the accused. PW4 further deposed that the hand writing seen on Exts.P17 to P20 is that of the accused. The amounts covered by the above demand notices were not credited by the accused to the account of KSEB. When cross-examined, PW4 admitted that the accused was a masdoor in the erstwhile Cochin Electric Company and when the KSEB took over the company, the accused was also absorbed. His educational qualification is 5th standard. Even according to the testimony of PW4, the educational qualification for a cashier in KSEB is graduation. PW4 is unaware as to whether any training had been given to the accused for performing the duties of a cashier. Court below considered the fact that the invoices and pre-written receipts were prepared by the billing unit. Even according to the prosecution case, the accused had no role in their preparation. On this reasoning the court below found that the accused could be connected with the said receipts only by showing that he had put his initial and date on the receipts when he collected amounts from the consumers.
9. The first instance of misappropriation is in respect of collection of `1,232.10 from consumer No.2788 on 20.10.1990. Ext.P23 is the invoice and Ext.P24 is the pre-written receipt. PW8 is the consumer. PW8 stated that Ext.P24 receipt was obtained by him for remitting money through his driver. PW8 had not seen the accused receiving cash. It is true that in Ext.P19 daily collection statement for 20.10.1990, the said amount was not entered. But, there is no evidence to show that the accused received the amount.
10. Next instance of misappropriation is in respect of `226.40 collected from consumer No.2137 on 14.11.1990. Ext.P27 is the invoice and Ext.P28 is the receipt. It is pertaining to the consumer, who is examined as PW7. PW7 also stated that she did not personally go and remit the money. However, this amount is not credited to Ext.P20 daily collection statement.
11. The third instance is in respect of collection of `1,490/- from consumer No.1355 on 14.11.1990. Ext.P29 is the invoice and Ext.P30 is the receipt. PW7 is the consumer, who deposed that she had not paid the amount directly to the accused. The last instance of misappropriation in this series is relating to collection of `4,409.20 from consumer No.2809 on 14.11.1990. PW11 is the consumer. There is no case for PW11 that he paid the money to the accused directly.
12. In order to prove an offence under Section 13(1)(c) of the Act and Section 409 IPC, certainly the prosecution has to prove that there was entrustment of money to the accused and that he misappropriated the said amount. Court below rightly found that since the pre-written receipts in the above instances were not prepared by the accused and the receipts were not signed by him, the burden is on the prosecution to show that the accused was responsible for receiving cash as alleged. Court below held that the prosecution failed to show that the pre-written receipts were handed over by the billing section to the accused and he was in custody of those receipts. PW16 is a handwriting expert. Ext.P49 is the report of the expert. PW16 has not given an opinion that the initials contained in Exts.P24, 26 and 30 are that of the accused. Even though, PW4 in chief- examination stated that those receipts contained the initials of the accused, when cross-examined with reference to Ext.P24, his answer was that he could not say whether the initials seen on the receipts were that of the accused himself. PW4 has admittedly not seen the accused collecting amounts and putting initials on the receipts.
13. Learned counsel for the accused submitted that under the Electrical Major Section, Manathavady there are three centres, viz., Mananthavady, Panamaram and Vellamunda. It came out in evidence that same consumer number could be seen in Mananthavady and Panamaram as well as in Vellamunda. Exts.P24 to 30 do not show as to which centre they related. Name of the centre is not shown in the respective invoices also. Name of the Electrical Major Section, viz., Mananthavady alone is shown therein. Court below, therefore, was of the view that one is unable to say whether the receipts related to Mananthavady centre or to other centres. Learned Prosecutor contended that this reasoning of the court below is without any evidence. On going through the testimony of PWs 4 and 6, it can be seen that the cashiers working in the Electrical Major Section were sitting together without any separation. The possibility of a consumer remitting money to a cashier working in another centre cannot be ruled out, contended the learned counsel for the accused. Going by the evidence, I am of the view that the prosecution has not established that the accused accepted money and misappropriated it without entering in the account.
14. Another circumstance pointed out by the prosecution is that the accused has paid `17,887.60 admitting his guilt. Learned Prosecutor relying on the decision of the Supreme Court in Thiru John v. Returning Officer (AIR 1977 SC 1724) contended that an admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that “what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established.” Learned counsel for the accused would contend that he was asked by the authorities to pay the short fall so that they would consider his reinstatement in service. It is also submitted by the learned counsel for the accused that payment of deficit amount, found in the Section wherein the accused was working, cannot be treated as his admission of the guilt. Court below found that the amount remitted by the accused did not tally with the amount involved in the case. However, remitting certain amount alone cannot be considered as a reason for finding that the accused had misappropriated amounts.
15. On a careful scrutiny of the oral and documentary evidence in the records, I find no reason to hold that the view taken by the court below is improbable or perverse. I am also of the view that the prosecution failed to establish that the accused misappropriated money as alleged. Hence I find no merit in the appeal. It deserves to be dismissed.
In the result, the appeal is dismissed.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.Appeal No.54 of 2001 JUDGMENT 27th May, 2014