IMPORTANT POINTS
The appeal under section 372 of Cr.P.C was not exercisable since the sentence imposed was one invoking the provisions under the Probation of Offenders Act, 1958

JUDGMENT :

State of Kerala represented by the Superintendent of VACB, aggrieved by the judgment of the Enquiry Commissioner and Special Judge, Thrissur in C.C.No.23 of 1999, arising from V.C.No.5 of 1997 of VACB, Idukki has preferred this appeal.

2. First and second accused faced trial before the court below for offences punishable under sections 13(1)(c) and (d) r/w 13(2) of Prevention of Corruption Act, 1988 and under sections 409, 468, 471, 477A and 120B of IPC. The case of the prosecution in a nutshell was that, first accused while working as the Assistant Director of Agriculture, Thodupuzha and the second accused while working as the Assistant Manager of the Kerala State Horticultural Produce Development Corporation Limited, Munnar, entered into a criminal conspiracy to forge receipts and to use the photocopies of false receipts as genuine documents to misappropriate a sum of Rs.61,507.88/-by not supplying full quantity of seedlings distributed under the Western Ghat Development Programme (WGDP). Crime was registered, investigation was conducted and final report was laid. Accused denied the charges and evidence was adduced by the prosecution and defence. On the basis of the available evidence, the court below found the first accused guilty of offences punishable under sections 13(1)(c) and (d) r/w 13(2) of Prevention of Corruption Act, 1988 and under sections 409, 468, 471, 477A of IPC. Accordingly, sentences for varying periods were imposed on him. Second accused was found guilty of offence under section 465 IPC alone and was convicted. However, invoking section 3 of the Probation of Offenders Act, 1958 he was released on probation after admonition.

3. Aggrieved by the judgment, conviction and sentence, State has preferred this appeal, essentially contending that, the sentence imposed on the first accused was not commensurate with the seriousness of the guilt established and that the order of the court below releasing the second accused on probation was not proper.

4. Heard both sides and examined the records.

5. It is seen from the records that the first accused had challenged his conviction and sentence in Crl.Appeal.No.37 of 2002. When the matter came up before the concerned court on 28th September 2017, it was noted that the appellant had expired on 17.07.2013 and that, the legal representatives have not come forward to get themselves impleaded. The Learned Judge took the view the Full Bench of this Court in Crl.Appeal.No.699 of 2005 and Crl.Appeal.No.278 of 2006 has held that, if the accused dies and the Lrs. have not come on record, the appeal shall get abated. In Crl.Appeal.No.37 of 2002, inspite of long lapse of time, legal representatives of the accused had not come forward to get themselves impleaded. Hence the appeal was closed as abated. In the light of the Full Bench judgment, this appeal at the instance of the State as against the conviction and sentence of the first accused cannot survive and is accordingly closed.

6. Adv.Mrs.K.B.Sony, learned Government Pleader contended on behalf of the Vigilance that the court below had, on the basis of evidence, found the second accused guilty under section 465 of IPC. It was contended by the learned Government Pleader that the accused ought to have been found guilty also for offences punishable under the Prevention of Corruption Act. However, such a contention is not available to the appellant, since the challenge is confined only to the order of the court below to the extent of releasing the accused on admonition after invoking section 3 of the Probation of Offenders Act. The finding of the court below holding the second accused guilty only for offence punishable under section 465 of IPC was not challenged in appeal. Since section 120B of IPC has not been found against both the accused, second accused cannot be roped in with the first accused for the offences for which first accused was found guilty. Hence, the finding of the court below to the extent of holding the second