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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Mani and Ors. – Appellants
Vs.
State – Respondent
Criminal Appeal Nos. 775 and 793 of 2003
Decided On : 12-02-2018
Indian Penal Code, 1860 – Sections 409 r/w 109 – Prevention of Corruption Act, 1988 – Section 13 – Order of Conviction – Present appeals Crl.A. arises from the judgment in Spl.C.C. wherein Thiru Mani (A-1) appellant in Crl.A. found guilty of offences under Sections 409 r/w 109 of Indian Penal Code and 13(2) r/w 13(1)(c) and (d)(i) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I for a period of 5 years and to pay a fine of Rs. 2,000/-, in default to undergo S.I. for 6 months each and period of sentence to run concurrently along with the sentence imposed in Spl.C.C. – Held, First accused/appellant in Crl.A. No. 775/2003 cannot plead absence of mens rea and put the blame on A-2 who is his subordinate when duty is cast upon A-1 to maintain service register and supervise the service matters of the teachers including sanctioning of short term advances, sanction of GPF advances both temporary and part final upto 75%. – He under statute being vested with domain over the property, he cannot take umbrage under absence of mens rea. – Since the prosecution has proved entrustment and dishonest misappropriation they are not factually appropriated to this case. – Similarly, though the appellants have pleaded that the money alleged to have been misappropriated already recovered from them, there is no evidence to vouchsafe the plea. – According to PW-6 and PW-7, only part of the amount had been recovered. – Even if that plea is true, it may only mitigate the sentence but, will not exonerate them. – Taking into consideration the attended circumstances like the present age of the appellants and years passed due to pending litigation as well the repayment made by them, this Court is of the view that the period of sentence requires the following modification. – Under Sections 409 r/w 109 IPC and 13(2) r/w 13(1)(c) &(d)(i) of PC Act To undergo RI for 5 years each with a fine of Rs. 2000/- each, in default to undergo SI for 6 months each To undergo RI for 1 year each. Criminal Appeals Disposed of.
G. Jayachandran, J.
1. Batch of appeals arising from the judgments of the trial Court in Spl.CC Nos. 4 to 12 of 2001 on the file of District and Sessions/Special Court, Udhagamandalam, Nilgiris District bears a common root tracing to the complaint of Thiru. Narayanasamy, District Education Officer (DEO). The accused persons Thiru. Mani (A-1) and Thiru. K. Bellikalan (A-2), who are now appellants before this Court are public servants employed in Education Department as Additional Assistant Elementary Education Officer (in short "AAEEO") and Record Clerk respectively at Kothagiri Assistant Education Office. The charges against them are criminal breach of trust, misappropriation, forgery, falsification of accounts, creation of false documents and abuse of official position for illegal pecuniary advantage. As far as Spl.C.C. Nos. 5 to 7 of 2001 are concerned, Thiru. Mani (AAEEO) and Thiru. K. Bellikalan, (Record clerk) are accused.
2. The criminal law has been set into motion based on the complaint lodged by Thiru. R. Narayanasamy, then Director of Elementary Education on 17.09.1997 detailing out several instances of falsification of accounts, financial irregularities including misappropriation and forgery. Though the complaint named only Thiru. Mathappan (AEEO) and Thiru. Thathan (AEEO) as suspects of crime, in the course of the investigation, apart from these two named accused, others, who were working in the Kothagiri Assistant Elementary Education Office, also found involved in the crime. The investigation has led to file 9 separate final reports against the persons involved in respective act of forgery, misappropriation, creation of false documents and falsification of accounts.
3. The present appeals Crl.A. Nos. 775 and 793 of 2003 arises from the judgment in Spl.C.C. No. 5 of 2001 wherein Thiru Mani (A-1) appellant in Crl.A. No. 775 of 2003 found guilty of offences under Sections 409 r/w 109 of Indian Penal Code and 13(2) r/w 13(1)(c) and (d)(i) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I for a period of 5 years and to pay a fine of Rs. 2,000/-, in default to undergo S.I. for 6 months each and period of sentence to run concurrently along with the sentence imposed in Spl.C.C. Nos. 6 and 7 of 2001.
4. The Appellant in Crl.A. No. 793 of 2003, Thiru. K. Bellikalan [A-2], found guilty of offences under Section 409 Indian Penal Code and Section 13(2) r/w 13(1)(c) & (d)(i) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I for a period of 5 years and to pay a fine of Rs. 2,000/-, in default to undergo S.I. for 6 months each and period of sentence to run concurrently along with the sentence imposed in Spl.C.C. Nos. 6 and 7 of 2001.
5. Case of the Prosecution in brief:
Between 03.07.1995 and 24.07.1997, [A-1] Thiru. Mani was the Additional Elementary Education Officer at Kothagiri and [A-2] Thiru. Belli Kalan was the Record Clerk in that office. While A-2 [Thiru. Bellikalan] was entrusted with the responsibility of preparing the pay bills of the teaching staff and deducting the recoverable like, LIC premium and RD, remit the same in to the LIC office and Post Office. Whereas, A-2 [Thiru. Bellikalan] collected Rs. 1,63,156/- from the salaries of the staff but he remitted only Rs. 1,17,142/-. Thus, misappropriated a sum of Rs. 46,014/-. A-1 [Thiru. Mani] being the AEEO is the Superior Officer had abetted A-2 [Thiru. Bellikalan] to commit misappropriation. Both A-1 [Thiru. Mani] and A-2 [Thiru. Bellikalan] being public servants, had misconducted themselves by abusing their official position to get pecuniary advantage causing wrongful loss to the State.
6. To substantiate the charges, the prosecution has examined 15 witnesses and marked 73 exhibits. Most of the witnesses and exhibits are common to other Spl.C.C. Nos. 6 and 7 of 2001. The trial Court has found the prosecution proved and held
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