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2015 Supreme(Ker) 1293

IN THE HIGH COURT OF KERALA
P. Ubaid, J.
Thankamma – Appellant
Vs.
State of Kerala - Respondent
Crl. A. No. 355 of 2009
Decided On : 17-12-2015

Advocates Appeared:
For the Appellant : R. Padmakumar and P. Aravind
For the Respondents: M.T. Sheeba, Government Pleader

Headnote:

Prevention of Corruption Act 1988 - Sections 13(2) & 13(1)(c) - Criminal Procedure Code, 1973 - Section 154 - F.I.R. - Enquiry of - Prosecution - Examination of - Complainant - F.I.R. was registered suo motu - Findings of - Held, F.I.R. does not show that such an enquiry was conducted on basis of a definite complaint - When final report shows that a definite complaint lead to an enquiry by vigilance, and F.I.R. is based on report of such enquiry, prosecution is bound to prove said complaint which lead to crime, and prosecution is also bound to examine complainant who made the complaint - Report of enquiry also must be produced in court - In a case where F.I.R. was registered suo motu by a police officer on basis of informations received by him, those materials received by him, revealing commission of cognizable offence, must be proved by officer, who received information - Court has settled position that when a crime is registered on a definite complaint, said complaint must be produced in court, and as part of trial, said complaint must be proved by person who made complain

JUDGMENT :

P. Ubaid, J.

1. The appellant herein was the Junibr Superintendent of Thazhakkara Grama Panchayat from 10.12.1996 to 15.11.1998. She had additional charge of the Secretary of the Panchayat from 10.8.1996 to 15.11.1998. During the said period some amount was allotted to the Panchayat, by the District Labour Officer, Alappuzha as pension for the agricultural workers. On the allegation that from out of the said amount, the accused appropriated an amount of Rs. 2,100/- under false vouchers in the name of seven agricultural workers, she faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Kottayam in C.C. No. 1/2008, under Sections 409, 468 and471 of the I.P.C. and also under Sections 13(2) r/w 13(1)(c) of the Prevention of Corruption Act (for short 'the P.C. Act). The accused appeared before the Trial Court and pleaded not guilty to the charge framed against her under Sections 409, 468 and 471 of the Indian Penal Code and under S. 13(2) r/w 13(1)(c) of the P.C. Act.

2. The prosecution examined 19 witnesses during trial and marked Exts. P1 to P64 documents. Exts.X1 and X2 were also marked during trial. When examined under S. 313 Cr.P.C. the accused denied the incriminating circumstances, and submitted that she had not appropriated any amount from the agricultural workers' pension,' and that the whole amount was disbursed to the concerned persons or the: legal heirs, under proper vouchers. In defence the accused examined three witnesses,! including the then President of the Grama Panchayat. On an appreciation of the evidence, the learned Trial Judge found the accused guilty. On conviction, she was sentenced to under go simple imprisonment for a period of one year each under Sections 409, 468 and 471 of the I.P.C. and under S. 13(2) r/w 13(1)(c) of the P.C. Act by judgment dated 31.1.2009. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the prosecution does not have any material to prove the alleged misappropriation, breach of trust, or the alleged falsification of the documents, and that the whole prosecution case is really baseless. The learned Public Prosecutor on the other hand submitted that one false voucher, and misappropriation by using the said voucher stands proved in this case by scientific evidence, though as regards the other six vouchers the evidence is not definite and consistent, and that on this ground of misappropriation the accused is liable to be convicted.

4. Before going to the factual aspects of the alleged misappropriation and forgery of vouchers, let me see whether the other legal aspects are satisfied in this case. Ext. P14 is the prosecution sanction proved by PW19. On an examination of the evidence given by PW19 I find that his evidence on material aspects is not effectively challenged in cross-examination. PW19 was the Joint Director of Panchayat (Administration) in charge of the Director of Panchayats. As the Director of Panchayat (in charge) he granted Ext. P14 sanction to prosecute the accused in this case under S. 19 of the P.C. Act. His evidence shows that he granted sanction on an independent application of his mind and also on a consideration of all the relevant aspects and materials. I find nothing to suspect his evidence, and I find that Ext. P14 sanction was properly granted by PW19 as required under the law. The sanction stands properly proved in this case by PW19.

5. Now let me come to the other very important legal aspect as to whether the F.I.R. in this case is proved. What is alleged by the prosecution is misappropriation of public funds under forged documents. Of course as regards the alleged forgery, the prosecution has only one document to prove the case, and that is Ext. P50 report of expert. As regards the other six vouchers, it stands proved that the amount covered by these vouchers were disbursed to the legal heirs of







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