Saturday 22 October 2016

When offence of criminal breach of trust is not made out?

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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