Decided on April 03,1967



- (1.) THE petitioner, one P. V. Govindan Nair alias P. V. G. Nair, was tried in Sessions Case No. 37 of 1965 in the Court of the Assistant sessions Judge, Tellicherry, for the offences under S. 406, 420 and 457 of the indian Penal Code. THE learned Assistant Sessions Judge found that the petitioner was guilty of the offences under S. 406 and 467 IPC. and acquitted the petitioner of the offence under S. 420 of the I. P. C, giving him the benefit of doubt. THE petitioner was sentenced to undergo Rigorous Imprisonment for three years for each offence; and the sentences were directed to run concurrently. THE petitioner filed an appeal before the Sessions Judge of tellicherry as Criminal Appeal No. 69 of 1965. THE learned Sessions judge, while accepting the findings arrived at by the trial court, held that the petitioner was guilty of the offence under S. 420 IPC. and not under S. 406 I. P. C. Accordingly, he altered the finding of the trial court and maintained the sentence under S. 433 (1) (b) of the Code of Criminal Procedure, as regards the charges against the petitioner under S. 406 and 420 I. P. C. THE conviction of the petitioner under S. 457 I. P. C. was upheld. Accordingly, the appeal was dismissed. THE petitioner has, therefore, come before this court in revision.
(2.) THE nature of the case demands that the facts should be set out at some length. THEre is an organisation called the Co-operative for american Relief Everywhere, shortly known as ' CARE', working in India with its headquarters in Delhi and branches in various States. THE object of this organisation is to distribute gift articles furnished by the american people to the needy and poor in India. THE distribution is being done in collaboration with the Regional Directors of Food Supplies in the various States. THE CARE has a branch office in Madras, of which one R. Sreenivasan, who is pw. 2 in this case, was the Manager at all relevant times. He was formerly a stenographer in the General Hospital , Madras. THE petitioner was then a representative of the Life Insurance Corporation of India in Madras. He happened to be treated in the Madras General Hospital, while pw. 2 was working as a stenographer there. During that time, the petitioner and pw. 2 became acquainted. In August 1960, the petitioner visited the office of the CARE in Madras and represented to pw. 2 that he had taken up charge as Honorary Secretary of the Kerala Sarvodaya Samithi in Thiruvangad, Tellicherry, (hereinafter referred to as the Samithi), which was said to be an organisation founded for doing social service. He made a request to pw. 2 for arranging the supply of the gift articles from the CARE to the Samithi, for distribution amongst the poor people of the area, which was being served by the Samithi. THE CARE distributes these articles usually through such social organisations; and before it entrusts the articles for distribution, it takes an assurance from the person to whom the articles are to be entrusted for distribution. This is taken in a set form. Ex. P-2 dated 16-8-1960 is the form said to have furnished by the petitioner as honorary Secretary of the Samithi, undertaking to distribute the articles to be entrusted to him on behalf of the Samithi as per the assurances contained therein. pw. 2, on receipt of this form, wrote to his central office in Delhi, recommending the supply of the articles to the Samithi for distribution. Ex. P-3, dated 8-11-1960, is the letter written by pw. 2 in this respect. On the basis of this recommendation, the CARE in Delhi included the name of the samithi amongst its list of distributors. In November 1960, the CARE got a consignment of milk powder at Madras; and it allotted 200 cartons out of this consignment to the samithi. Accordingly, pw. 2 arranged to despatch 200 cartons to the Samithi, which was done through it transporting agents; and the goods were sent by rail from Madras to Tellicherry. Ex. P-43 dated 30-12-1960 is the railway receipt relating to the despatch of these goods. Ex. P-43 was sent to the petitioner by registered post; and the petitioner received the same at Tellicherry on 9-1-1961. Ex. P-15 is the postal receipt; and Ex. P-16 is the postal acknowledgment receipt, which evidence that the registered article containing railway receipt was received by the petitioner on 9-1-1961. The petitioner took delivery of these 200 cartons of milk powder from the railway as per Ex. P. 43 on the same date. Ex P-57 dated 9-1-1961 is a letter, which the petitioner sent to the CARE at New Delhi. reporting the arrival of the above articles. The petitioner had to furnish to the CARE a distribution plan regarding the manner of distribution of these articles and also certificates regarding the distribution of the same. Ex. P-63 dated 10-1-1961 is the distribution plan, which the petitioner submitted to the CARE regarding the distribution of the said articles. Ex. P-61 dated 4-2-1961, Ex. P-62 dated 23-2-1961 and Ex. P-59 not dated are the certificate of distribution relating to the months of january, February and March respectively of 1961, which the petitioner furnished to CARE, certifying the distribution of the said goods, in the manner stated in these certificates. In March 1961, the CARE got another consignment of milk powder at Madras. As per despatch instructions issued from Delhi, 200 cartons of milk powder out of this consignment were allotted to the petitioner; and the said goods were sent to the petitioner from Madras to Tellicherry through rail as before. Ex. P-44 dated 3-4-1961 is the railway receipt; and it was sent to the petitioner by registered post. Ex. P-27 and Ex. P-28, both dated 10-4-1961 are the postal receipt and postal acknowledgment which evidence that the registered article containing Ex. P-44 was delivered to the petitioner on the above date. The petitioner took delivery of these goods on 12-4-1961. Ex. P-58 dated 14-4-1961 is the report, which the petitioner sent to the CARE at new Delhi acknowledging the receipt of the goods on 12-4-1961, Ex. P-60 dated 7-5-1961 is the certificate of distribution which the petitioner sent to the care regarding the distribution of the goods in May 1961. After taking delivery of these goods on 12-4-1961, the petitioner sold 100 cartons out of them to one mohammed Sali of Cannanore, who is pw. 21 in this case, for a sum of Rs. 12. 000/. He paid Rs 9,000/. in cash, and promised to pay the balance on reaching Cannanore. The sale was effected through a common friend, pw. 17. These 200 cartons of milk powder were taken from Tellicherry to Cannanore on the same day; and it happened to be seized by the Sales-Tax Officer, pw. 3, at the check post at Chovva, on the ground that the transport of the goods was not accompanied by the necessary documents as required by the General Sales-tax act, 1125. pw. 3 ordered the goods to be confiscated, and fixed a fine of Rs. 1,200/- in lieu of confiscation. The petitioner was got to the check post to get the goods released on the plea that CARE were exempt from Sales Tax; but this plea was not accepted by pw. 3. The amount of fine was paid by pw. 21; and the goods were redeemed by him and taken to Cannanore. The remaining 100 cartons of milk powder were taken by the petitioner to Calicut through a motor lorry. Ex P-85 is the Goods Vehicle Register relating to this lorry; and item no. 7 relates to the trip taken by this lorry on the night of 12-4-1961 from tellicherry to Calicut. There is an entry therein showing that 100 cartons of milk powder were sent by P. V. G. Nair, Kerala Sarvodaya Samithi, Tellicherry, to one P. Velayudhan.
(3.) IN the meanwhile Shri. K. Kelappan, Chairman, Kerala sarvodaya Mandal got information that CARE articles were being received in the name of a bogus Samithi, and were being sold in the black market. He wrote a letter Ex. P-1 dated 15-5-1961, to the Director of CARE in INdia, New Delhi, stating all the information that he had got in this respect. pw. 1 also sent a copy of this letter to the Superintendent of Police, Crime Branch, Trivandrum. The Director of CARE at New Delhi took up the matter with the Crime Branch. Accordingly, the police took up the case, and started investigation. A number of witnesses were interviewed, and a number of searches were conducted, and a volume of materials and documents were also seized by the police. Among the articles thus seized, are a series of empty milk powder cartons, and an unopened full carton of milk powder, both recovered from the possession of pw. 21. The investigation also established that these cartons related to the consignment of 200 cartons of milk powder despatched from Madras to Tellicherry as per Ex. P-44, and taken delivery of by the petitioner. After the completion of the investigation, the police filed final report against the petitioner charging him with the offences under S. 406, 420 and 467 IPC. ; and he was committed to the Assistant Sessions Court, Tellicherry, for being tried for the said offences. A large number of witnesses were examined, and a large volume of documents were let in evidence in the trial court. The evidence in the case has been fully discussed by both the courts below; and it is unnecessary for me to refer to them in any great detail. The petitioner contended both in the trial court and in the lower appellate court that he knew nothing about the so-called Kerala sarvodaya Samithi, that he never styled himself as an Honorary Secretary thereof, that he did not know pw. 2, and that he had nothing to do with any of the transactions relating to the milk powder in question. This plea was rejected by the trial court; and the trial court's finding was affirmed by the lower appellate court. There is a large volume of evidence both oral & documentary, to establish conclusively that a society by name "the Kerala sarvodaya Samithi" did not exist at Thiruvangad in Tellicherry District or in any of the neighbouring villages, that the petitioner falsely styled himself as the Honorary Secretary of such a Samithi, assured the CARE by Ex. P-2 to distribute the CARE articles as per terms and conditions contained therein, dishonestly managed pw. 2 to recommended the Samithi to be included among the list of distributors of the CARE actually got 400 cartons of milk powder from the CARE, and misappropriated the whole goods. The trial court held that the evidence of pw. 2 was unreliable, and that it appeared that Pw. 2 was an accomplice to the fraud committed by the petitioner. It took the view that, if pw. 2 knew that actually no organisation as the 'kerala Sarvodaya Samithi' existed, and he was also a party to the fraud played on the CARE, the charge of cheating pw. 2 and dishonestly including him to supply the milk powder to the samithy cannot stand against the petitioner. Accordingly, the trial court acquitted the petitioner of offence under S. 420 of the IPC. , giving him the benefit of doubt. As regards the offences under S. 406 and 467 IPC. the trial court found that on the facts established on the evidence, the petitioner was guilty of the said offences. The lower appellate court, however, held that, in so far as the petitioner got possession of the property by deception, the offence of criminal breach of trust cannot stand under law, and that the offence which the petitioner had committed was one under S. 420 IPC. Accordingly, the learned Sessions Judge altered the finding to one under S. 420 and maintained the sentence. As regards the conviction under S. 467 IPC. and the sentence awarded for the said offence, the lower appellate court confirmed the same.;

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