Decided on August 30,1968



- (1.) This appeal is against the order of acquittal passed by the appellate court. Before the First Class Magistrate of Ernakulam three persons were charged with offences of criminal breach of trust, forgery, falsification of accounts etc. falling under S.409, 468, 471 and 477A, IPC. The first accused was the store keeper of Public Works Department (B&R) Division in Muvattupuzha; the 2nd accused was a transporting contractor who was employed by the Executive Engineer, Muvattupuzha for transporting 333 tons of Max phalt 80/100 tar from the Burmah shell company at Willingdon Island to the PWD. Store at Muvattupuzha from 30-11-1961 to 25-3-1962; and the third accused was the technical assistant, PWD. (B&R), Muvattupuzha.
(2.) The prosecution case was that the tar entrusted to the 2nd accused from the Burmah shell company at Willingdon Island under orders of the Executive Engineer, PWD. to be transported to the store at Muvattupuzha was misappropriated by the accused and instead of taking the tar to Muvattupuzha, it was sold to one P. M. Paul, M.E.S. contractor at the Naval base, Cochin with the help of pws. 1, 4 and 5 and the proceeds were shared by the accused. This was done at the direction of the first accused and so he was charged with the substantive offence of criminal breach of trust, forgery and falsification of accounts; while the other two were charged as abettors, i. e., the said offences read with S.109 IPC. The first accused is absconding and so the trial has to be proceeded against accused 2 and 3 alone. The charge was denied by the accused. At the conclusion of the trial the third accused was acquitted and the 2nd accused was convicted as abettor and sentenced to R. I. for one year and also to pay a fine of Rs. 1000/-. He has been convicted and sentenced under three other counts also: but the sentences have been directed to run concurrently. He appealed to the Sessions Judge of Ernakulam against the said conviction and sentence and the Sessions Judge acquitted him. Against the order of acquittal the State has come up in appeal.
(3.) I do not see any reason to interfere with the order of acquittal entered by the learned Sessions Judge. The prosecution case is that accused 2 and 3 along with the absconding accused No. 1 with the intention of misappropriating Max phalt tar which the PWD had purchased from the Burmah shell company, diverted it to the Naval Base and sold to pw. 21 Paul, M.E.S. Contractor and shared the proceeds between them. The 2nd accused in his capacity as transporting contractor had undertaken to transport these barrels of tar to the PWD. store at Muvattupuzha. He was entrusted with this job by pw. 29 the Executive Engineer, B&R., Muvattupuzha on 23-11-1961. The period of the contract extended to 25-3-62 and within the period a total number of 1076 barrels of Max phalt 80/100 Bitmen tar was taken delivery of from the Burmah Shell company, Willingdon Island. Of this total quantity, 52 barrels taken delivery of on 17-1-1962, 208 barrels taken delivery of on 24-1-1962 and another 200 barrels taken delivery of on 28-2-1952, were not actually transported to the PWD. store at Muvattupuzha. All these 460 barrels were sold to pw. 21 under orders of the first accused and in order to cover the fraud, false entries were made in the accounts, measurement book, day book, ledger etc., by the first accused himself in such a way as to make it appear that the entire 460 barrels had also reached the store. The 2nd accused abetted the first accused by aiding, that is to say, by, diverting the barrels to the Naval Base and delivering the same to pw. 21. The third accused, the technical assistant, had also a hand in the completion of the fraud by his certifying to the effect that the entire quantity was received at the store; but the part played by the 3rd accused having not been satisfactorily proved he was acquitted.;

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