Public servants can be convicted for misappropriation despite procedural irregularities in stock management, establishing liability based on their handling of funds.

JUDGMENT :

A. BADHARUDEEN, J.

The 1^st accused in C.C.No.5 of 2003 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, has preferred this appeal challenging the conviction and sentence imposed against him in the above case dated 11.09.2013. State of Kerala is the respondent herein.

2. Heard the learned counsel for the 1^st accused/appellant as well as the learned Public Prosecutor.

3. Perused the trial court records as well as the verdict under challenge.

4. The prosecution case is that the 1^st accused while working as Clerk and Secretary-in-charge of Therumambalam Weaver’s Industrial Co-operative Society (`Society’ for short hereinafter), Payyannur during the period 01.10.1993 to 03.09.1994 and the 2<sup>nd</sup> accused while working as Weaving-cum-Dyeing Master of the above Society during the period 13.04.1984 to 31.03.1998 being public servants had abused their position as public servants and committed criminal breach of trust and fraudulently misappropriated clothes worth Rs.5,16,721/- and cash amounting to Rs.560/- of the above society during the period 01.10.1993 to 03.09.1994 and caused loss of Rs.5,17,287/- to the Society and had obtained undue pecuniary advantage of that amount for themselves and thereby they had committed the offences punishable under Sections 13 (1)(c) and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act’ for short hereinafter) and under Section 409 r/w 34 of the INDIAN PENAL CODE (`IPC’ for short).

5. On getting final report filed after investigation in this crime, the Special Court took cognizance of this matter and proceeded with trial. During trial, PWs 1 to 13 were examined and Exts.P1 to P38 were marked on the side of the prosecution. DW1 to DW3 were examined and Exts.D1 to D3 were marked on the side of the accused. Apart from that, Exts.X1 and X2 were also marked.

6. The Special Court appraised the contention raised by the prosecution as well as the accused and finally found that the 1^st accused is guilty for the offences punishable under Section 13 (1)(c) and 13(1)(d) read with 13(2) of the PC Act as well as under Section 409 of the IPC.

7. While impeaching the veracity of the verdict of the trial court, it is submitted by the learned counsel for the 1^st accused/appellant that the Special court went wrong in finding that the accused had dishonest or fraudulent intention so as to misappropriate the amount alleged. According to the learned counsel for the 1^st accused, the 1^st accused took charge on 01.10.1993 and held the post of Secretary till 03.09.1994 and the verification conducted by PW6 on 30.06.1994. PW6 deposed that stock verification was not conducted by the Board of Directors for a long period. Thus PW6 was not in a position to make any accurate report on that aspect. Therefore, the stock verification at the instance of PW6 alleged to be occurred on 30.06.1994 in between 10 a.m to 5 p.m whereupon the entire prosecution allegation as to misappropriation was raised is not believable. It is pointed out that as per clause 23(1)(f) of the bye-law of the Society, the Secretary is the custodian of all the property, including the cash of the society. As per Ext.P14(a) statement regarding verification of stock reveals that the 2^nd accused was working in the Society as weaving cum dyeing Master. As per Ext.P5, on 14.03.1984, the Director Board took decision that responsibility of the entire stock, i.e finished goods, yarn, looms and weaving equipments to be held by the Director Sri Krishnan to be given to the 2^nd accused. Ext.P14 issued by Junior Co- operative Inspector District Industries Centre, Kannur revealed that the 2^nd accused, namely P.V.Vijayan took charge of the entire stocks, i.e finished goods, yarn, looms and weaving equipments and accessories. It is submitted further that at the time when the 1^st accused took charge of the Secretary, there was no stock verification and the stock as such available was made accountable by the 1^st accused. Thus the misappro