SIVANANDAN Vs. STATE
LAWS(KER)-1955-4-1
HIGH COURT OF KERALA
Decided on April 04,1955

SIVANANDAN Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) This appeal is against a conviction for commission of the offences of criminal breach of trust, forgery and falsification of accounts - offences punishable under S.409, 467 and 477A of the Indian Penal Code, corresponding to S.410, 469 and 480 of the Travancore Penal Code. The appellant Govindan Sivanandan was a Special Accountant of the Alencode Pakuthy, Chirayinkil Taluk and was entrusted with the work of procuring paddy. In that capacity during the months of Makaram and Kumbhom 1124 he received from the Taluk Treasury at Attingal amounts aggregating to Rs. 2500 and the prosecution alleged several acts of embezzlement against him out of those amounts and out of the paddy purchased therewith. The specific case tried by the lower court related to a quantity of 45 paras and 2 edangalies of paddy out of a purchase of 60 paras from one Pathummal, the sister of one Mohammad Mustaffa who has been examined at the trial as Pw. 7. Agreeing with the opinion of the two assessors who assisted him at the trial, the learned Additional Sessions Judge of Trivandrum found that the accused had committed criminal breach of trust in respect of the said 45 paras and 2 edangalies of paddy and that with a view to conceal the misappropriation he had committed forgery and also falsified the accounts he was bound to maintain as Chief Accountant. He was accordingly convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.50 in respect of the charge under S.409 IPC, to undergo rigorous imprisonment for a period of two years for committing forgery and to undergo similar imprisonment for a period of one year for falsification of accounts. In default of payment of the fine he was to undergo simple imprisonment for a further period of one month and as for the substantive terms of imprisonment the direction in the judgment was that these sentences should run concurrently. The appeal is against these convictions and sentences.
(2.) That during Makaram and Kumbhom 1124 the accused was the Chief Accountant to the Alencode Pakuthy appointed for procuring paddy and that during those months he was entrusted with Rs. 2500/- for the purpose of procuring paddy, are facts proved beyond doubt by the evidence of Pw. 4, the then Tahsildar of Chirayinkil and that of Pw. 1, the then Assistant Purchasing Officer. The accused did not dispute these facts. About the middle of Kumbhom Pw. 4 wanted the accused to hand over an amount of Rs.1000/- to the Special Accountant of the neighbouring Navaikulam Pakuthy, but the accused pleaded that he had purchased paddy for all the amounts entrusted to him and that he was therefore unable to make the payment as directed. The sum of Rs. 2500/- entrusted to him was made up of three amounts; Rs.500/- on 9.6.1124, Rs.1000/- on 25.6.1124 and a further sum of Rs. 1000/- on 8.7.1124. Since the first payment of Rs. 500/- the accused had not submitted any accounts to his superiors as enjoined by the rules and when it was reported that he had made purchases for all the amounts, Pw. 4 wanted Pw. 1 to look into the matter and ascertain the true position. The enquiry Pw. 1 made pursuant to the direction showed that the accused was not in a position to produce any accounts with respect to the transactions he had made with the amounts he had received or produce the balance cash in hand which according to his own admission came to Rs. 400/- or thereabouts. These facts appear from a statement (Ext. B) which the accused himself gave before Pw. 1 on 17.7.1124. When the enquiry was pursued it was found that while according to the accused he had purchased 805 paras 2 edangalies of paddy, the stock under his custody came only to 760 paras and 3 edangalies and that out of the amounts entrusted Rs. 412 chs. 6 ca. 4 ought to have been with him as balance. He was not in a position to produce this until 22.7.1124. A third irregularity or fraud found was that out of the 24 purchases made during the period 24.6.1124 to 17.7.1124, the quantity shown in eleven counterfoils in the receipt book (Ext. A) maintained by the accused did not agree with the quantity shown in the receipts given to the parties from whom the purchases were made. In each case the quantity shown in the counterfoil was less than the quantity shown in the receipt. The sum total of the difference came to 165 paras and 4 edangalies. The value shown in each of these eleven counterfoils as having been paid is the value for the quantity mentioned there, but the respective receipts showed that value has been paid for the quantity as shown in them. Prima facie the parties obtained the value for the paddy sold by them, but the counterfoils, and as we shall presently see the Accounts maintained by the accused showed that only smaller quantities have been purchased from the respective parties. The obvious inference is that the accused must have been dealing with the excess paddy that came into his hands in the black market, probably thinking that the value paid for such excess quantities could ultimately be made good to the State without the fraud coming to light. When Pw. 1 acquainted Pw. 4 with the facts that had come to his notice during his enquiry, Pw. 4 sent a report (Ext. AF) to the police. This was on 5.8.1124. Pursuant to that report the police registered a case against the accused and on completion of their investigation laid a charge-sheet against him before the Stationary First Class Magistrate of Attingal accusing him of having committed the offences mentioned earlier. As early as 19.7.1124 Pw. 4 had placed the appellant under suspension and it would appear that thereafter he went into hiding. It was not until 28.10.1124 the police succeeded to apprehend him - vide Ext. AH. The case was registered as one for enquiry preliminary to committal and the enquiry would seem to have lasted well-nigh five years. The police jumbled together all the accusations into one charge. As per the charge framed by the learned Stationary First Class Magistrate the breach of trust related to the general deficiency of 44 paras and 9 edangalies of paddy found on verification of the stock. Obviously such a charge was open to exception in as much as Clause.(2) of S.222 of the Criminal Procedure Code manifestly deals only with money. It had no application to any other property. The learned Additional Sessions Judge before whom the case came up for trial on committal understood the position correctly and he chose one specific item in respect of which the evidence in the committing court showed the accused had committed the offences aforesaid and accordingly limited the trial to the offences in respect of that specific item.
(3.) The facts relating to that specific item, with which alone we are concerned here are clearly set out in his judgment by the learned Additional Sessions Judge as follows: The accused was a Special Accountant of the Alamcode Pakuthy, Chirayinkil Taluq, appointed for procuring paddy. He was entrusted with a sum of Rs. 2,500/- also for the above purpose. With the money so entrusted, the accused purchased 60 paras of paddy from one Pathummal, the sister of Pw. 7, but instead of crediting the whole quantity in the Government accounts, he credited only 14.8 paras and misappropriated the rest. In order to show that the quantity of paddy purchased from Pathummal was only 14.8 paras, in the counterfoil of the receipt issued to Pathummal he entered only 14.8 paras and the price for the same at Rs. 2 as 8 ps. 0 per para, i.e. Rs. 37 chs. 18 cash 8, though the receipt issued to Pathummal was for 60 paras and the amount paid to her was Rs. 152 chs. 19 cash 0. For the amount paid to the party a voucher had also to be obtained from the party as per the paddy procurement rules. On behalf of Pathummal, her brother Pw. 7 gave the accused a voucher also for the amount received, i.e., Rs. 152 chs. 19 cash 0. That voucher was suppressed by the accused and in its place he fabricated another for Rs. 37 chs. 18 cash 8 with the signature of Pw. 7 forged. In the Nalvazhi accounts also only 14.8 paras of paddy was shown as purchased.;


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