Prosecution must prove entrustment of property for misappropriation; burden shifts to accused upon proof to explain non-accounting, reaffirming legal standards for public servants under corruption statutes.

JUDGMENT :

A. BADHARUDEEN, J.

The accused in C.C.No.25 of 2008 on the files of the Enquiry Commissioner and Special Judge, Kottayam, has filed this Criminal Appeal under Section 374 of the Code of Criminal Procedure (`Cr.P.C’ for short hereafter) challenging the conviction and sentence imposed against him in the above case dated 11.02.2010 arraying State of Kerala represented by the Dy.S.P, VACB as the respondent.

2. Heard the learned counsel for the appellant/accused and the learned Special Public Prosecutor appearing for the VACB.

3. Perused the records of the Special Court and the judgment under challenge.

4. The prosecution case is that the accused while working as Senior Assistant Grade-I, in Kerala State Civil Supplies Corporation (`KSCSC’ for short), Taluk Depot, Cherthala, and as such a public servant, abused his official position to obtain illegal pecuniary advantage for himself and accordingly he had misappropriated 120 quintals of levy sugar worth Rs.1,02,000/- which was entrusted to him on 18.04.1991 on falsifying the records thereof. On this premise, prosecution alleged that the accused had committed offences punishable under Sections 409 and 477A of the INDIAN PENAL CODE (`IPC’ for short) as well as under Section 13 (2) r/w 13(1)(c) of the Prevention of Corruption Act, 1998 (`PC Act, 1988’ for short hereafter).

5. On receipt of the final report filed in this crime, the Special Court proceeded with trial on completing the pre-trial formalities. During trial, PW1 to PW8 were examined and Exts.P1 to P28 were marked on the side of the accused. On the side of defence, Exts.D1 and D2 were marked. On an anxious consideration of the evidence available, the Special Court found that the accused had committed offences punishable under Sections 409 and 477A of the IPC and also under Section 13 (2) r/w 13(1)(c) of the PC Act, 1988. Thus the trial court convicted and sentenced the accused as under:

“In the result, the accused is convicted under Sec. 13(2) r/w 13(1) (c) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for 3 (three) years and fine Rs.1,00,000/- (one lakh), in default to under go simple imprisonment for 6 (six) months, convicted under section 409 I.P.C. and sentenced to undergo rigorous imprisonment for 3 (three) years and fine Rs.1,00,000/- (one lakh) in default to undergo simple imprisonment for 6 (six months) and convicted under Sec.477A I.P.C. and sentenced to undergo rigorous imprisonment for one year. The sentences shall run concurrently.”

6. The learned counsel for the appellant/accused raised multiple contentions to upset the verdict impugned. According to the learned counsel for the appellant/accused, as regards to entrustment of 120 quintals of levy sugar in the custody of the accused, there is no convincing evidence. It is argued that as on 18.04.1991, the accused was not in charge of keeping levy sugar and the said charge was held by PW1, Kusumam and thereafter a document produced as Ext.P1 was created by PW1 and other officials to show that the charge of levy sugar was held by the accused as on 18.04.1991 at a subsequent stage, i.e on 24.04.1991 to fasten liability of missing sugar on the accused. That apart, Ext.P1 report was not sufficiently proved. As regards to the endorsement on the reverse side of Ext.P2, the carbon copy of Goods Transfer Order (GTO) receipt notes dated 18.04.1991, the same is suspicious, false and fabricated one and thus it could not be considered as a genuine one. If the accused had a motive to misappropriate the sugar, he could have put a different sign deliberately. It is poi