The court affirmed that once entrustment of funds is proven, the burden shifts to the accused to demonstrate no misappropriation occurred; failure to do so results in conviction under the Prevention of Corruption Act.

JUDGMENT :

A. BADHARUDEEN, J.

This criminal appeal, filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for short), is at the instance of the sole accused in C.C.No.56/2003 on the files of the Enquiry Commissioner and Special Judge, Kozhikode. He assails judgment in the above case dated 30.11.2010.

2. Heard the learned counsel for the appellant/accused and the learned Special Public Prosecutor appearing for Vigilance and Anti-Corruption Bureau. Perused the relevant documents.

3. I shall refer the parties in this appeal as 'accused' and 'prosecution' hereinafter for easy reference.

4. Precisely speaking, the prosecution case is that, the accused while working as a Lower Division Clerk (LD Clerk) in Kerala State Housing Board (KSHB), Wayanad Division, Kalpetta, during the period from 04.06.1998 and 14.12.2000, abused his official position and committed criminal misconduct and thereby, dishonestly and fraudulently misappropriated an amount of Rs.86,332/- (Rupees eighty six thousand three hundred and thirty two only), which was collected by him, being the cashier, as part of repayment made by the loanees from the Kerala State Housing Board. Thus the accused alleged to have committed offences punishable under Sections 409, 468 and 420 of the Indian Penal Code (hereinafter referred to as 'IPC' for short) as well as under Section 13(1)(c) and (d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’ for short).

5. The Special Court took cognizance for the offences and proceeded with trial. During trial, PW1 to PW12 examined and Exts.P1 to P27 were marked on the side of the prosecution. On completion of prosecution evidence, even though the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence, no evidence adduced on the side of the accused.

6. Thereafter, the trial court addressed the question as to whether the accused misappropriated Rs.86,332/-, as alleged, while he was holding the post of L.D. Clerk in the Kerala State Housing Board, Wayanad Division, Kalpetta office in between the period 04.06.1998 and 14.12.2000 and finally, the accused was found guilty for the offences punishable under Section 13(2) r/w. Section 13(1)(c) and (d) of the PC Act and thereby, he was convicted and sentenced for the said offences while acquitting him for the offences punishable under Sections 409, 468 and 420 of IPC.

7. While assailing the verdict of the trial court, the learned counsel for the accused argued that, the trial court entered into conviction merely based on conjectures and surmises and the prosecution miserably failed to adduce convincing evidence to prove misappropriation of Rs.86,332/-by the accused with fraudulent and dishonest intention.

8. It is pointed out by the learned counsel for the accused further that going by the evidence of PW2 (clerk) as well as PW9 (Accounts Officer), it is emphatically clear that, apart from the accused/appellant, other persons, viz., James, PW2 and other contractual employees also, received amount from the loanees during the period. It is also pointed out that, according to PW9, the Accounts Officer, the amount received for the period in between 07.07.1999 and 23.07.1999 were deposited in bank and therefore, no misappropriation during the relevant period. It is also pointed out that Shri.Raveendran, the Accounts Officer who was responsible for verifying the cash book and daily books to ensure that the amounts collected on each day were remitted to the bank on the next day was spared by the prosecution without citing him as a witness or examining him. According to the learned counsel for the accused, since the amounts as per the prosecution evidence were collected not only by the accused but also by PW2 and other contractual employees, and when there was failure on the part of the Accounts Officer to verify the same, in a criminal prosecution, merely because the