SUPREME COURT OF INDIA
N. Bhargavan Pillai (Dead) By Lrs.
Vs.
State of Kerala
Crl.A.No.1262 of 1998
(Doraiswamy Raju and Arijit Pasayat JJ.)
20.04.2004
JUDGMENT
Arijit Pasayat, J.
1. N. Bhargavan Pillai (hereinafter referred to as 'accused') as appellant
questioned correctness of the judgment rendered by learned Single Judge of the
Kerala High court upholding his conviction under Section 5(2) of the Prevention
of Corruption Act, 1947 (in short the 'Act') and Section 409 of the Indian
Penal Code, 1860 (in short the 'IPC'). For the offence under the Act, he
was sentenced to undergo rigorous imprisonment for two years and to pay a fine
of Rs.1, 00, 000/- with a default stipulation of 6 months imprisonment and
sentence of one year for the offence under the IPC. Since he died during
pendency of the appeal, his legal representatives sought for impletion and have
been impleaded.
2. Accusations which led to trial of the accused are essentially as follows:
“The accused was employed in the Civil Supplies Department in the rank of
Assistant Taluk Supply Officer. He was working as Junior Manager on deputation
in the Kerala State Civil Supplies Corporation (in short the 'Corporation'), at
Kowdiar. While he was functioning as such, by Ex.P-19 order dated 14.4.1983 of
the Regional Manager, of the Corporation, Thiruvananthapuram, he was appointed
as Unit Manager of the Corporation, Unit Punalur. Pursuant to the orders he
took charge as Unit Manager in the Punalur Unit. His 5 years deputation to the
Corporation was to be completed on 30.6.1986. But, instead of relieving him,
the Corporation had requested the Civil Supplies Department to extend his term
of deputation by one year stating that certain liabilities were outstanding.
But later, the request for extension of deputation was limited upto 30.11.1986
by Ext.P-38 letter dated 4.11.1986 from the Managing Director of the
Corporation to the Director of Civil Supplies, Board of Revenue. By the same
letter, the Regional Manager of the Corporation, was directed to relieve the
accused to his parent department on 30.11.1986 itself. Pursuant to the
direction, the Regional Manager issued Ext.P-20 order dated 29.11.1986
relieving the accused effective from the afternoon of 29.11.1986. However, the
accused did not hand over charge on 29.11.1986. He did not attend the office
after 27.11.1986, but applied for leave. As he did not attend the office on
29.11.1986, the Regional Manager by Ext. P-22 dated 1.12.1986 permitted
Natarajan Asari (PW-3), the Senior Assistant in the Punalur depot to assume
charge effective from that date. Accordingly, PW-3 assumed charge of the depot
and this was reported by the Regional Manager to the Managing Director of the
Corporation by Ext. P-23 dated 4.12.1986. The stock of the Punalur Depot were
partly stored in the Warehousing Corporation godown at Punalur and partly in
the godown attached to the office, referred to by the witnesses as self-godown.
Though PW- 3 assumed charge, the accused had not handed over the keys of the
godown or verified the stock. Thereafter the accused reported in the depot on
13.12.1986 and in the presence of the then Assistant Manager (Accounts) (PW-2)
in the Regional Office of the Corporation, brought the keys and opened the
godown. He also undertook in writing by Ext.P-24 to hand over charge on the
13th, 15th and 16th December, 1986. In the presence of the accused the items
found in the godown were verified. Only the stock of 21.875 quintals of M.P.
boiled rice and 84 kg. Of tamarind were found in the self-godown. A stock statement
was also obtained from the State Warehousing Corporation. The Managing Director
of the Corporation directed a special audit to be conducted by PW-1 who was
then working as an Assistant Manager in the Internal Audit Wing of the
Corporation on deputation from the Accountant General's Office. Accordingly,
PW-1 conducted a special audit and Ext.P-1 was prepared.”
3. The stock in the State Warehousing Corporation godown as also the
self-godown were verified as on 31.3.1986. As per Ext.P-2 stock verification
report, there was an actual stock of 37.8 quintals of Palmolein and 44 quintals
of free sale sugar. Subsequent to 1.4.1986, 100 quintals of paper boiled rice
were transferred from the Warehousing Corporation Depot to the self-godown, and
23.65 quintals were returned from the Onam markets in Punalur. Thus, the
physical stock should have been 123.65 quintals of boiled rice. But the actual
stock found was 21.65 quintals. Thus, there was a shortage of 102 quintals.
Similarly, a total quantity of 72 quintals of Palmolein had been transferred
from the State Warehousing Corporation godown to the self-godown as per Exts.
P9 and P11 goods transfer orders and Exts. P10 and P12 good transfer notes
signed by the accused. But, there was no stock of palmolein. There was a stock
of 46 quintals of free sale sugar as on 1.4.1986. Out of this 5 quintals had
been transferred to the Maveli Store, Punalur as per a consignment note dated
31.10.1986. The stock register showed a closing balance of 30 quintals, but no
stock was available in the godown. PW-1 assessed the total value of shortage of
rice at Rs.33, 150/- that of polyolefin at Rs.1, 08, 000/- and sugar at Rs.22,
620/-. He also reported that the accused had withdrawn loading and transporting
charges for these articles as per Exts. P13 and P14 series vouchers. No
irregularity was found in the transactions under Imprest, or in the accounts
regarding sales and remittance. There was excess stock in the Warehousing
Corporation godown as the ration dealers had not lifted and that was tallied by
31.12.1986 also. By Ext. P-1, PW-1 fixed accused's liability including
infructuous expenses on transporting and cost of missing empty barrels at Rs.1,
70, 640/-. On 29.12.1986 the accused undertook to remit Rs.1, 63, 770/- being
the value of the shortage of 72 quintals of palmolein, 102 quintals of rice and
39 quintals of sugar and in part payment, deposited Rs.50, 000/- in the Punalur
Depot on that day. By Ext. P-17 he undertook to deposit half the amount by
2.1.1987 and the balance by 31st March next year. Thereafter the matter was
reported to the Board of Revenue and the accused was suspended from service by
Ext.P-37 order of the Board of Revenue, dated 31.1.1987. The Managing Director
of the Corporation wrote to the Director of Vigilance (Investigation) along
with a copy of Ext.P-1 report. The Director of Vigilance (Investigation)
sanctioned registration of a case. On the basis of the direction the then
Deputy Superintendent of Police, Vigilance, Kollam (PW-10) registered a case as
per Ext.P-39. He entrusted the investigation to Inspector of the Kollam
Vigilance Unit-I (PW-11), who conducted the investigation and sent a report to
his higher authorities. In the meantime, the accused retired from service on
28.2.1992. Since he had retired from service sanction for prosecution became
unnecessary. The case was transferred to the newly established Pathanamthitta
Vigilance Unit. PW-12, the Deputy Superintendent of Police, Vigilance, and
Pathanamthitta Unit who was put in charge of this case also verified the
records and filed the charge sheet.
4. Before the trial Court accused pleaded innocence. Twelve witnesses were
examined and 47 documents were exhibited for the prosecution to further its
case. Though the accused did not examine any witness, documents were marked as
Exts. D-1 to D-5. The trial Court on consideration of materials held the
accused guilty and convicted him as afore-noted. The High Court in appeal
confirmed the conviction, and sentence.
5. In support of the appeal, Mr. C.N. Sree Kumar, learned counsel submitted
that in the absence of a sanction for the prosecution in terms of Section 19 of
the Act and Section 197 of the Code of Criminal Procedure, 1973 (in
short the 'Code') the whole proceeding was non est and the trial was vitiated.
Additionally, it was submitted that the prosecution has not established any
mis-appropriation and/or mens rea of the alleged crime and, therefore, both the
trial Court and the High Court have acted contrary to law. It was further
submitted that both the trial Court and the High Court proceeded on mere
surmises and conjectures to hold that the accused had committed
mis-appropriation. The essential ingredients necessary to prove the accusations
under Section 409 IPC are squarely absent. Additionally, it was submitted that
both the trial Court and the High court have attached undue importance to the
fact that the accused-appellant had agreed to pay the differential amount.
Reliance was placed on a decision of this Court in Jiwan Dass v. State of
Haryana to contend that even if the accused had agreed to pay the amount that
was not material while considering the issue whether the ingredients have been
established by the prosecution. It is a case where the sanction which was
sought for was refused. The prosecution has acted unfairly in taking advantage
of the position that after retirement sanction is not necessary under the Act.
In any event, in respect of a retired employee sanction is necessary in terms
of Section 197 of the Code. Effort has been made to overreach and circumvent
law after retirement and such arbitrary action should not be countenanced.
Finally, it was submitted that taking note of the small amount involved and the
fact that the accused has already deposited the amount the benefit available
under the Probation of Offenders Act, 1958 (in short the 'Probation
Act') can be extended. Strong reliance is placed on a decision of this Court in
Bore Gowda v. State of Karnataka1 . It is pointed out that
though accused has died during pendency of appeal his legal representatives
have been impleaded and benefit available under Section 12 of the Probation Act
should not be denied to them.
6. In response, Mr. Ramesh Babu learned counsel for the respondent-State
submitted that the Courts below have acted in accordance with law keeping in
view the correct principles and the factual scenario. Mis- appropriation is no
part of an employee's official duty and, therefore, the question of any
sanction under Section 197 of the Code does not arise. In any event, initially,
the sanction was not accorded because the accused had retired and had agreed to
pay the amount but that was not the final decision. In a case involving
corruption it would be against public interest not to proceed against the
accused who is guilty of misappropriating huge amount of stock meant for the
people. The Probation Act has no application to the cases covered under the
Act.
7. When the newly-worded Section 197 appeared in the Code with the words
"when any person who is or was a public servant" (as against the
truncated expression in the corresponding provision of the old Code of
Criminal Procedure, 1898 a contention was raised before this Court in
Kalicharan Mahapatra v. State of Orissa that the legal position must be treated
as changed even in regard to offences under the Old Act and New Act also. The
said contention was, however, repelled by this Court wherein a two-Judge Bench
has held thus : "A public servant who committed an offence mentioned in
the Act, while he was a public servant, can be prosecuted with the sanction
contemplated in Section 19 of the Act if he continues to be a public servant
when the court takes cognizance of the offence. But if he ceases to be a public
servant by that time, the court can take cognizance of the offence without any
such sanction." *
8. The correct legal position, therefore, is that an accused facing prosecution
for offences under the Old Act or New Act cannot claim any immunity on the
ground of want of sanction, if he ceased to be a public servant on the date
when the court took cognizance of the said offences. But the position is
different in cases where Section 197 of the Code has application.
9. Section 197(1) provides that when any person who is or was a public servant
was 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) 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 the Union, of the Central Government and (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.
10. We may mention that the Law Commission in its 41st Report in paragraph
15.123 while dealing with Section 197, as it then stood, observed "it
appears to us that protection under the section is needed as much after
retirement of the public servant as before retirement. The protection afforded
by the section would be rendered illusory if it were open to a private person
harbouring a grievance to wait until the public servant ceased to hold his
official position, and then to lodge a complaint. The ultimate justification
for the protection conferred by Section 197 is the public interest in seeing
that official acts do not lead to needless or vexatious prosecution. It should
be left to the Government to determine from that point of view the question of
the expediency of prosecuting any public servant". It was in pursuance of
this observation that the expression 'was' come to be employed after the
expression 'is' to make the sanction applicable even in cases where a retired
public servant is sought to be prosecuted.
11. Above position was highlighted in R. Balakrishna Pillai v. State of Kerala.
12. As noted in State of M.P. v. M.P. Gupta1 sanction under
Section 197 of the Code is not a condition precedent for an offence under
Section 409 IPC.
13. It is fairly well settled position in law that actual mode of entrustment
or mis-appropriation is not to be proved by the prosecution. Once entrustment
is proved, it is for the accused to prove as to how the property entrusted was
dealt with. In Jiwan Dass's case (supra) the factual position was entirely
different. It was held that the undertaking given in that case could not be
held to be confession or admission. In the present case, the factual scenario
as noticed by the trial Court and the High Court is different. It was not only
on the basis of the undertaking that the conviction was recorded, but the other
evidence on record also unerringly proved entrustment. Therefore, it was for
the accused to prove as to how the property entrusted with him was dealt with.
No material was placed in that regard. Therefore, the Courts below correctly
held entrustment to have been proved. The concurrent findings of fact
recorded by the Courts below relating to entrustment and mis-appropriation in
our view are well merited and fully justified on the basis of evidence on
record and do not suffer from any perversity or patent error of law to warrant
interference.
14. Coming to the plea relating to benefits under the Probation Act, it is to
be noted that Section 18 of the said Act clearly rules out application of the
Probation Act to a case covered under Section 5(2) of the Act. Therefore, there
is no substance in the accused- appellant's plea relating to grant of benefit
under the Probation Act. The decision in Bore Gowda's case (supra) does
not even indicate that Section 18 of the Probation Act was taken note of. In
view of the specific statutory bar the view, if any, expressed without
analysing the statutory provision cannot in our view be treated as a binding precedent
and at the most is to be considered as having been rendered per incuriam.
Looked at from any angle, the appeal is sans merit and deserves dismissal which
we direct.
12003 (10) JT 32