Velayudhan Pillai vs State Of Kerala on 26 July, 2001

Kerala High Court Kerala High Court Velayudhan Pillai vs State Of Kerala on 26 July, 2001 Author: J.B.Koshy Bench: J Koshy JUDGMENT J.B.Koshy, J. 1. These two appeals are filed by the same appellant against the common judgment passed by the Enquiry Commissioner & Special Judge, Thiruvananthapuram in C.C.No. 7/1991 & C.C. No.8/1991. The appellant was convicted under S.5(1)(c) and (d) read with S. 5(2) of the Prevention of Corruption Act, 1947 and Ss. 409 & 477-A of the Indian Penal Code. The accused was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for six months and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for a further period of three months for the offence under the Prevention of Corruption Act and to undergo simple imprisonment for four months each for the offenses under Ss. 409 and 477-A of the Indian Penal Code. All the sentences were directed to run concurrently. 2. The appellant/accused was the Village Officer of Kumarapuram Village of Karthikapally Taluk situated within the jurisdiction of Sub Collector, Chengannoor for the period from 13.3.1979 to 12.9.1979 and from 25.9.1979 to 29.10.1992. PW7 was then working as the Senior Village Assistant along with PW8 another Village Assistant. Accused took charge as the Village Assistant along with PW8 another Village Assistant. Accused took charge as the Village Officer from PW13, his predecessor on the afternoon of 13.3.1979. It is not disputed that the accused was the Village Officer for the period in question. PW2 has availe kayal Reclamation Loan from the Agricultural Department. He was depositing the instalments in the Village Office and obtaining receipts for the same. On 20.8.1982 PW2 had paid Rs. 500/- towards the loan to the accused and obtained Ext. P6 receipt written and signed by the accused. Even though PW2 had repaid the loan he received a notice demanding the balance amount. Therefore, he submitted a petition (Ext. P16(a) before the Tahsildar for issuing a certificate. When the payments were verified with the receipts produced, it was found that Ext. P6 payment was not accounted. Even though for receiving Rs.500.00 Ext. P6 receipt was issued in original, in Ext. P5(a) carbon copy, payment of basic tax of 24 paise was only recorded. The matter was reported to the District Collector who in turn directed PW1, the then Sub Collector of Chengannoor to conduct a detailed enquiry by checking the receipts issued by the accused during the period he had worked as village Officer. On verifying the records various irregularities were found out wherein the original receipts and carbon copies are not tallying. 3. Apart from the allegation of PW2, it was also found out that when Ext. P7 receipt No.21 was issued for payment of Bank loan with interest and notice charge of Rs. 1043/- to one Rughmini Amma on 20.4.1982, Ext. P4(a) purported counterfoil of receipt No. 21 accounted only receipt of payment of basic tax of 24 paise as paid by one Prabhakaran on 29.4.1982. PW3 was examined to prove the amount paid on behalf of his wife. Similarly, a large number of differences were found out in the amounts mentioned in original receipts and in the corresponding counterfoils written with carbon paper. In the preliminary enquiry it was found out that the appellant has committed the offence under S.5(2) read with S.5(1)(c) and (d) of P.C. Act, 1947. After completing the investigation, PW14 sent final report for further action to PW15. After verifying the investigation conducted by PW14, two separate charge sheets were laid by PW15 against the appellant and it was registered as C.C.Nos. 7/1991 and 81991. Charges were almost of identical nature on the basis of Ext. P1(a) report regarding the fabrications made by the accused in the official records during the period when he was working as Village Officer in the same office. Therefore both cases were tried together. Evidence was adduced. No witness was examined on the side of the defence. 34 documents were produced by the prosecution and 16 witnesses were examined. Five documents, mainly portions of C.D.Statement of PWs. 2,3,5 and 7 and counterfoil receipt of Ext. P3 were marked by the defence.
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Velayudhan Pillai vs State Of Kerala on 26 July, 2001

4. From the evidence adduced in the above case, the Enquiry Commissioner and Special Judge found that the accused was guilty of the offenses charged against him. In the statement under S. 313 Cr.P.C. the accused pleaded a complete denial. But the evidence of the witnesses conclusively proved the charges levelled against eh appellant. Amounts and details mentioned in Exts. P5(a),P4(a) and P4(b), the alleged carbon counterfoils of Exts. P6,P7 and P8 were not tallying. It is also proved that the amounts covered by the above original receipts were entrusted with the accused and the carbon copies do not tally with the original receipts, and he has accounted only the amounts mentioned in the carbon copies. It can be done only by removing the carbon paper before writing the original receipts or some other paper must have been placed in between the respective counterfoils. Exts. P5(a), P4(a) and P4(b) are created by writing them on some paper placed above the carbon paper as if to appear that the entries were made by writing on the original receipts. Exts. P9(c), P9(b) and P9(a) entries of the collections covered by Exts. P5(a), P4b) would establish that there is falsification of accounts in the day book also by the Village Officer. Similar corrections found in Exts. P3(a), P3(b), P3(c) and P(d) were not there in Exts. P10 to P15 receipts establishing that he said fraudulent and dishonest alterations were made subsequently as if those corrections were made in the original receipts itself which is not the case as proved by Ext. P10 to P15 receipts. Similar is the case with the other corrections found by PW1. Detailed evidence were adduced and conclusively proved that appellant was guilty of the offenses charged. 5. The only ground pressed before me is regarding the impropriety and illegality of joint trial of C.C.Nos.7/1991 & 8/1991 in relation to the misappropriation committed by the appellant during the years 1980 & 1982 in respect of which two charge sheets as 1/91 and 2/91 were laid by Dy.S.P., Vigilance. Arguments were based on S. 218 of the Code of Criminal Procedure. I have perused the files. Both the cases were being posted on the same day and were called one after another. Court framed charges separately. Before evidence was recorded, the following endorsement was made in the case diary of C.C. 8/1991 on 23.9.1993: "Accused present. No joint trial petition filed. Evidence being recorded in C.C. No. 7/91. Adjourned to 26.10.93". The appellant has cross-examined the witnesses examined on behalf of the prosecution, produced documents and fully co-operated with the trial. Evidence was virtually one because the ledgers, books etc. were kept in the office. Absolutely no prejudice has been caused to the appellant by the procedure adopted by the Special Judge and accused did not raise any objections before the Court below against the procedure adopted by the Special Judge. Before this Court also he is unable to demonstrate that any prejudice was caused to him by the joint trial. In fact the above procedure recording the evidence in one case and calling the cases together was advantageous to the appellant because defence was the same. Main documents relied on by both sides are the same. Evidence was recorded in C.C. 7/1991 and it was adopted in C.C. 8/1991 and common judgment was passed. After conviction accused was heard separately in the question of sentence and sentence was passed. Therefore I am of the opinion that a fair procedure was adopted by the Special Judge without causing any prejudice to the accused. 6. Assuming that judgment was passed after a joint trial, we may consider whether there is any substance in the arguments raised by the counsel for the appellant in this regard. S. 218 of the Criminal Procedure Code provides as follows: "218. Separate charges for distinct offences. (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desire and the Magistrate is os opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-s. (1) shall affect the operation of the provisions of Ss. 219, 220, 221 and 223".
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Velayudhan Pillai vs State Of Kerala on 26 July, 2001

It is the case of the appellant that since he did not request in writing for joint trial, the offences cannot be tried together and there is irregularity in the procedure. S. 218 provides that there must be separate charges for each distinct offence and there shall be separate trial for each charges except cases covered under Ss. 219 to 221 and 223 of Cr. P.C. the underlining principle behind the Section is that accused should not be bewildered by facing many disconnected charges and prospects of a pair trial should not be blocked by production of mass evidence produced in different matters causing prejudice. There is real likelihood of prejudice if accused is asked to defend several unconnected charges. (See Aftab Ahmad v. Hakim Mohamad Yar Khan (AIR 1954 SC 436)). Here in this case two different charge sheets were issued containing charges for same type of offence and there is no misjoinder of charges. Before completing the discussions, I may now consider whether the same will come under any of the exceptions. 7. Admittedly S. 219 Cr. P.C. is not applicable here as the offences were not committed within a span of one year or otherwise within the space of 12 months. S.220 of Cr. P.C. is as follows: "220. Trial for more than one offence.(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-s. (2) of S. 212 or in sub-s. (1) of S.219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this section shall affect S. 71 of the Indian Penal Code (45 of 1860)." S. 220 Cr.P.C. is an enabling section containing an exception of S.218 Cr. P.C. Allegations herein are a 'series of acts' connected together. Same modus operandi is used to misappropriate the Government dues during the terms of the office of the accused as Village Officer in the same place and it cannot be stated that it is not in the same transaction. There is continuous action for a common purpose running through the acts. Evidence is common and there is continuous operation of acts leading to the same offences at several occasions. Supreme Court considered a case where there were charges for several offences under Ss. 409 & 477A and held that it can be tried jointly under S. 220 Cr. P.C. (See Chandi Prasad v. State of U.P. (AIR 1956 SC 149). Following the observations in the above judgment, I am of the view that joint trial without causing any injustice to party cannot be set aside in view of S. 220 Cr. P.C. Here there is only one set of offence and S. 220 itself need not be called in assistance. There is no misjoinder of charges in this case. There is no violation of the provisions in S. 218 Cr. P.C. and hence no necessity to get the assistance of S. 220 Cr. P.C. Only one charge sheet would have been enough. I also not that allegations raised in the two charge sheets constitute identical offence and even though there were two charge sheets, only one set of sentence was passed in this case in view of S. 71 of the Indian Penal Code.

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Velayudhan Pillai vs State Of Kerala on 26 July, 2001

8. Next question to be considered is whether the trail itself is illegal if the mandate in S. 218 of the Code of Criminal Procedure is violated. It was argued that S. 218(1) provides a positive prohibition regarding joint trail of different charges. It was held by the Privy Council in Subramania Iyer v. King Emperor (28 Ind App 257) that the entire trial is bad when a trial is conducted in a manner different from that prescribed by the Code and the defect cannot be cured. Therefore, it is argued that in view of the express provision contained in S. 218, the trial conducted violating the above provision is illegal and the matter should be remanded for fresh trail as in the trial in question two separate charges were jointly tried. A similar view was expressed by the Privy Council in Abdul Rahman v. Emperor (AIR 1927 SC 44). I may answer this question assuming that there is a misjoinder of charges and violation of S. 218 of the Code of Criminal Procedure and S. 220 is not applicable here. The views expressed by the Privy Council in earlier cases in this aspect were subsequently diluted in Atta Mohammed v. Emperor (AIR 1930 PC 57 (2)) wherein the Privy Council held as follows: "In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere." This was further explained by the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67). In Zahiruddin v. Emperor ( AIR 1947 PC 75) the Privy Council held that the question is not regarding the express prohibition is curable. A five member Bench of the Supreme Court in Willie Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) analysed the decision of the Privy Council and held as follows: "13. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth,..." "16. We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us an unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to 'substantial' denial of a trial as contemplated by the Code and understood by the comprehensive expression 'natural justice'." Therefore, when there is an allegation of violation of the Code in the procedure adopted, the question to be considered is, whether by the alleged violation of a provision in the Code real prejudice has been caused to the accused? Merely because of the deviation from the procedure prescribed by the Code, the trail will not become invalid. The appellate court and revisional court can interfere with the trial only if there is flagrant violation, which will go to the root of the matter causing actual prejudice to the accused by the procedure adopted by the trial court. While deciding the case one cannot forget the facts of the case. Even if the plea pointed out by the appellant is correct, it only leads to an irregularity curable under S. 464 of the Code and illegality. Here in this case there is not miscarriage of justice warranting interference of this Court. In this connection I refer to the decisions of the Supreme Court in R.K. Dalmia v. Delhi Administration (AIR 1962 SC 1821). Whether there is infraction of mandatory provisions warranting the appellate court to set aside the proceeding or mere irregularity, the court is bound to consider whether there has been a real prejudice to the accused causing failure of justice. Here, on the facts of this case, no prejudice at all has been caused to the appellant because of the procedure adopted by the Special Judge. (See also Gurbachan Singh v. State of Punjab (AIR 1957 SC 623) and K. Kunhahammad v. The State of Madras (AIR 1960 SC 661). In any event, when objection is taken with regard to violation of Code and misjoinder of charges, only in the appeal stage, such objections need not be considered if there is no failure of justice as held by the Apex Court in Sushil Kumar v. Joy Shankar (AIR 1971 SC 1543). 9. s. 464 Cr. P.C. is relevant here which is as follows:
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Velayudhan Pillai vs State Of Kerala on 26 July, 2001

"464. Effect of omission to frame, or absence of, or error in, charge.- (1) No finding, sentence or order by the court of competent jurisdiction shall be deemed in valid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may(a) in the case of an omission to frame a charge, order that a charge be framed and that the trail be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." The words 'including any misjoinder of charges' are now specifically mentioned in S. 464(1) Cr. P.C. leaving the matter beyond any doubt. (See Prem v. State of Haryana (AIR 1989 SC 934)). It is not disputed that a court of competent jurisdiction has tried the offences. Full opportunity was granted to the appellant in taking his defence. To consider the question whether there is 'failure of justice' courts should act with a broad vision and look into the substance of the complaint and not the technicalities. If there is fair trial and accused is given full and fair chance to defend himself after explaining the charges against him, one cannot contend that there is failure of justice'. No prejudice has been caused to the appellant/accused in this case and he had no complaint throughout the trial, against the procedure adopted by the Special Judge. Even at the time of argument before the lower court, there was no such plea. A remand or order for retrial after 20 years of the alleged offence will not be justified. We are not aware whether witnesses are still alive. No purpose will be served by remanding the matter as requested by the counsel for the appellant. In fact an order for retrial at this distance of time will cause 'failure of justice'. 10. On the basis of evidence adduced in this case, prosecution was able to prove the charges levelled against the accused conclusively and sentence awarded is also fully justified. I see no ground to remand the matter or interfere with the sentence and conviction entered by the lower court. Both the appeals are dismissed.

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