Mere retention of the amount for a short period,
without the element of dishonesty cannot make it an
offence of criminal breach of trust. There cannot be a
presumption of dishonest or fraudulent intention. A
temporary retention of money, in these contexts, cannot
invite a criminal offence, because of the absence of mens
rea. There was no intention on the part of the appellant
to commit any criminal misappropriation or criminal
breach of trust, as held in Thankappan(supra). Matters
being so, this is a fit case wherein the conviction and
sentence passed by the court below are liable to be set aside.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
Dated: 18TH DAY OF JULY2016
CRL.A.No. 1098 of 2009
P.P. MOHANAN, Vs STATE OF KERALA,
The appellant is the accused in C.C.No.18 of 2003 of
the court of the Enquiry Commissioner and Special Judge,
Kozhikode, who stands convicted under Section 13(2)
read with Section 13(1)(c) of the Prevention of Corruption
Act, 1988 and Section 409 IPC and sentenced to undergo
rigorous imprisonment for two years and to pay a fine of
2,000/-, in default to undergo rigorous imprisonment for
six more months under Section 13(2) read with Section
13(1)(c) of the PC Act, further sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
1,000/-, in default to undergo rigorous imprisonment for
three more months under Section 409 IPC.
2. The petitioner was working as the Village Officer,
Menhannium Village, during the period from 18.01.2000
to 15.03.2000. The petitioner, who was a public servant
allegedly abused his official position and committed
criminal misconduct by dishonestly and fraudulently
misappropriating a total amount of 55,371/-. He had
allegedly collected an amount of 3,621/- from PW2 by
way of revenue recovery towards contribution of KAWWF,
45,000/- from PW1, being instalment of building tax of
commercial building and an amount of 6,750/- from
PW3, being the instalment of building tax of commercial
building, by issuing post dated receipts without making
corresponding entries in the cash book of the Village
Office. It is alleged that without remitting the said
amount of 55,371/- collected by him as aforesaid in the
Treasury/Bank, he committed criminal breach of trust by
misappropriating the said amount, which amounted to
criminal misconduct within the meaning of Section 13(1)
(c) of the PC Act.
3. From 01.03.2000 onwards, the accused was on
medical leave and consequently, PW4, who was the then
Village Assistant was put in charge of the Village Officer.
Then, PW4 had to handle the receipt book of the Village
Office. He could see the counter foil of the receipts, by
which, the accused had collected the aforesaid amount of
55,371/-. On verification of the cash book, he could
trace out that the said amount collected through receipts
issued to PWs.1 to 3, were not entered in the cash book.
Over and above the said amount, an amount of 40,000/-
had also to be remitted. Immediately, he reported the
matter to the Tahsildar, Koyilandy, through Ext.P9 report.
On 28.02.2000 as well as 29.02.2000, the accused was on
medical leave. On the previous day to the date on which
the accused was on medical leave, one of the relatives of
the accused had informed PW4 that the accused had
sustained injuries on a fall and he was hospitalized. PW4
sent PW21 Village Man and one Pradeepan, who was the
sweeper, to the hospital to meet the accused. The
accused handed over an amount of 40,000/- to PW21 and
thereafter, on getting that amount, PW4 entered it in the
cash book.
4. PW18 Dy.S.P., VACB, Kozhikode registered
Ext.P56 FIR. Investigation was conducted by PW19
Dy.S.P., VACB, Kozhikode. The unit Dy.S.P., after
verifying the investigation, filed the final report.
5. On the side of the prosecution, PWs.1 to 21 were
examined and Exts.P1 to P59 were marked. On the side
of the accused, DW1 was examined and Exts.D1 series to
D6 were marked. The court below found the accused
guilty of the offence punishable under Sections 13(2) read
with Section 13(1)(c) of the PC Act and Section 409 IPC,
convicted him thereunder and sentenced him as
aforesaid.
6. The learned senior counsel for the appellant has
argued that the court below ought not to have found the
accused guilty of the aforesaid offences, because of the
fact that there was absolutely nothing to prove any
dishonest intention or fraudulent intention on the part of
the appellant to misappropriate the amount. It is argued
that, at the most, the retention of the amount by the
accused could only be styled as a temporary
embezzlement and could not be styled as
misappropriation or criminal breach of trust in the
absence of any fraudulent or dishonest intention. The
learned senior counsel for the appellant has relied on the
decision in Thankappan v. State of Kerala [1965 KLT
501] and the decision of the Apex Court in Illiyas v.
State of Kerala [2012 (2) KLT Suppl. 70 (SC)].
7. Per contra, the learned Public Prosecutor has
pointed out that in the decisions in Thankappan (Supra)
and Illiyas (Supra), the period, in which, the amounts
were retained by the accused in those cases were 22 days
and 21 days respectively and the said proposition in those
decisions cannot be applied to the facts relating to this
case.
8. According to the learned Public Prosecutor, when
there is a proved retention of that much amount of public
money by the appellant for about 1= years, it cannot be
said that the same was only a temporary embezzlement,
and that, had it been a temporary embezzlement, he
would have remitted that amount at least within a month.
9. Here in this case, the appellant had suffered an
accidental fall on 27.02.2000, and consequently he was
hospitalised. He sustained a fracture to his leg. On
28.02.2000, he had handed over an amount of 40,000/-
to PW21. After leave, he had joined duty on 13.03.2000.
He was placed under suspension on 15.03.2000. He has
remitted back the entire amount of 55,371/- on
10.08.2001.
10. In this case, the FIR was registered on
25.01.2001. The final report was filed on 27.03.2002. It
is true that the amount was remitted prior to the filing of
the final report in the case. At the same time, it has to be
noted that the appellant remitted the amount only after
six months from the date of the registration of the FIR.
In such a context, it has to be considered whether the
accused had attempted to remit the amount at least
within a month or whether there was any obstacle in
making such remittance.
11. The learned Senior Counsel for the appellant
has produced the copy of O.P.No.32214 of 2000 filed by
the appellant before this Court seeking a direction to
reinstate him in service, and for a direction to dispose of
and to pass final orders on Ext.P4 appeal preferred by the
appellant as per the directions of this Court before the
Secretary to the Government, etc. Along with the said
OP, the petitioner had produced Exts.P2(a) to P2(c)
Challans dated 15.03.2000. It seems that the petitioner
was all along ready and willing to remit the amounts
which he had to remit. It has come out that it was on
account of some supervening circumstances, he could not
remit the amounts in the treasury and it so happened that
he had to retain the amount with him. Then, he had met
with an accident whereby he was hospitalised on
27.02.2000. He was discharged from the hospital on
08.03.2000 only.
12. According to the appellant, on 13.03.2000, he
was taken to the office by his friends and relatives, since
his right leg was in plaster cast and he joined duty in
such a state on 13.03.2000. On 14.03.2000, he prepared
Exts.P2(a) to P2(c) Challans and sent the same to the
Tahsildar for counter signatures, for effecting remittance
at the treasury. The Tahsildar was not prepared to
counter sign it on the ground that he had reported the
matter to the District Collector whereby disciplinary
actions were initiated against the appellant. Therefore, it
has come out that there was a genuine and reasonable
ground on the part of the appellant in retaining the
amount with him.
13. Even prior to the month end, he met with an
accident and had to be hospitalised. He was being treated
as inpatient till 08.03.2000. He was virtually carried to
his office by his friends and relatives on 13.03.2000 for
resuming duty. It seems that on the very next day, he
prepared Exts.P2(a) to P2(c) Challans appended with
O.P.No.32214/2000. He could not remit the amount solely
because of the fact that the Tahsildar was not prepared to
counter sign those Challans. For want of counter
signatures, the amount could not be remitted. Therefore,
it was on account of such an obstacle and impediment, he
could not make the remittance.
14. Mere retention of the amount for a short period,
without the element of dishonesty cannot make it an
offence of criminal breach of trust. There cannot be a
presumption of dishonest or fraudulent intention. A
temporary retention of money, in these contexts, cannot
invite a criminal offence, because of the absence of mens
rea. There was no intention on the part of the appellant
to commit any criminal misappropriation or criminal
breach of trust, as held in Thankappan(supra). Matters
being so, this is a fit case wherein the conviction and
sentence passed by the court below are liable to be set
aside.
In the result, this Criminal Appeal is allowed, and
the conviction and sentence passed by the court below
are set aside. The appellant stands acquitted.
Sd/-
B.KEMAL PASHA, JUDGE
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