Once entrustment of funds is established, the accused must explain their handling; failure to remit constitutes misappropriation.

JUDGMENT :

(P.G. AJITHKUMAR, J.)

These are appeals against conviction. The appellant was tried by the Enquiry Commissioner and Special Judge, Thrissur in two cases, namely, C.C.Nos.12 of 2001 and 13 of 2001. Common are the offences alleged which are punishable under Sections 13(1)(c) and (d) read with 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Sections 409 , 420 , 468 , 471 and 477A of the Indian Penal Code, 1860 ( IPC ). In both, the appellant was convicted for all those offences and sentenced. Except for the offence punishable under Section 471 of the IPC , the appellant was awarded sentence of various terms of imprisonment and also fine. The terms of the substantive sentence in each case were ordered to run concurrently.

2. The appellant was an Upper Division Clerk (U.D. Clerk) in Kunnamkulam Municipality. The period of the offence is 03.01.1996 to 06.07.1997. On detecting the misappropriation of money by the appellant, a crime was registered and after investigation, two final reports were filed. Since the period during which various instances of the offences sprawled beyond the period of one year, two cases were instituted.

3. The case of the prosecution is the following:

The appellant was a U.D. Clerk in the Kunnamkulam Municipality. Being such a public servant, he during the period from 03.01.1996 and 06.07.1997 received various amounts towards licence fees, premium, electricity charges, etc. and he misusing his official position fraudulently misappropriated such sums. Thereby the Municipality sustained a loss of Rs.1,21,784/- While receiving such sums he had issued forged receipts also. By doing those acts he committed offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of the PC Act and Sections 409 , 420 , 468 , 477 A and 471 of the IPC .

4. When charges were framed and read over, the appellant pleaded not guilty. Hence, the prosecution has examined PWs 1 to 21 and proved Exts.P1 to P96. On the closure of the prosecution evidence, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973 (Code). He denied all the incriminating circumstances that appeared against him in evidence. He further stated that he was innocent. No defence evidence was let in. The Special Court, after considering the evidence in detail, found the appellant guilty of all the offences with which he was charged. That resulted in his conviction and the sentence. The said conviction and sentence are under challenge in these appeals filed under Section 374(2) of the Code.

5. Since the learned counsel, who filed the appeal reported no instruction, notice was sent to the appellant to appear in court. He accordingly appeared before this Court on 25.11.2020 and submitted a request to get appointed a legal aid counsel. He, however, did not furnish any document enabling the High Court Legal Services Committee to appoint a legal aid counsel. Hence, on 30.05.2023, this Court appointed Advocate Dheeraj Rajan as Amicus Curiae to appear on behalf of the appellant.

6. Heard the learned Amicus Curiae and the learned Senior Public Prosecutor.

7. The fact that the appellant was working as a U.D.Clerk in the Angamaly Municipality is not a disputed fact. However, the prosecution has adduced sufficient evidence to establish the said fact, both oral and documentary. PW3 was the Secretary of the Municipality during 1997. He as well as other members of the staff, namely, PW8, PW9, PW12 and PW13 also deposed about that fact. On the premises that he was an employee in