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

                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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