Ingredients Of 'Criminal Breach Of Trust' & 'Misappropriation' Must To Establish Offence U/S 13(1)(c) Prevention Of Corruption Act: Kerala High Court

The Kerala High Court recently upheld the conviction of a Lower Division Clerk (L.D. Clerk) working on deputation in the Directorate of Higher Secondary Education, Thiruvananthapuram, under the Prevention of Corruption Act, 1988, for embezzlement of certain amount and forgery of document in that regard. 

Justice Kauser Edappagath observed that an amount of ₹74,789/- that had been entrusted with the appellant-accused was misappropriated by him. 

"To attract the offence of criminal breach of trust, the prosecution has to prove that there was entrustment of property with the accused and he has dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well," the Court explained while finding the accused guilty of the offence. 

The appellant was accused of having misappropriated an amount of ₹74,789/-, and making false entry in the Cash Book regarding the embezzlement. The appellant-accused was found guilty of the offences under Section 13(2) read with 13(1) (Criminal Misconduct by Public Servant and punishment thereof)  of the Prevention of Corruption Act, 1988 and Sections 409 (Criminal breach of trust by public servant, or by banker, merchant or agent), 465 (Punishment for forgery), 468 (Forgery for purpose of cheating), 471 (Using as genuine a forged document or electronic record) and 477A (Falsification of accounts) of the IPC by the Enquiry Commissioner and Special Judge, Thiruvananthapuram. He was sentenced to imprisonment and fine. It is challenging the same that the present appeal was filed. 

Amicus Curiae Advocate Abraham Mathan submitted that there was no evidence on record to connect the appellant with the offences alleged against him. 

The Court noted that the appellant-accused had admitted that a sum of ₹5,90,000/- was allotted for the examination wing of the Directorate of Higher Secondary Education, which was withdrawn through the A-Section where the accused was working as L.D. Clerk.

The Court perused the evidence rendered by the prosecution witnesses and found that the amount had been withdrawn by the appellant, and handed over to D-Section which deals with the examination. The Court further noted that the evidence rendered would also prove that the D Section returned unused amount of ₹74,789/-  from the total amount, to the appellant for depositing the same in Treasury in October 1998, but this was not done, although the entries were made in the Cash Book to make it appear that the said amount was remitted in the Treasury vide challan.

The Court took note that the appellant deposited the said amount in the Treasury only in April 2002, as per the Challan. 

It was the argument of the appellant that he had entrusted the said amount with a temporary Peon to be deposited in the Treasury as he was burdened with work, and had thus entered the factum of deposit on the Cash Book and Challan Registers. 

The Court observed that the entrustment of the amount with the accused had been proved. 

The Court noted the deposition by the prosecution witnesses that there was no such peon working at the office, as the appellant had averred, during the relevant period. The Court also took note that no steps had been taken by the defence to produce documents to prove the same. 

"The accused has failed to prove at least by preponderance of probability that he had entrusted the amount with Yesudas. Then, the only conclusion possible is that the accused has misappropriated the money. He misusing his official position as public servant misappropriated the amount entrusted with him. Thus, offence under section 13(2) read with 13(1)(c) of the PC Act as well as under section 409 of IPC stands clearly proved," the Court held. 

The Court added that the appellant had forged the challan and used the same as genuine, as well as falsified the accounts and signature in addition to committing misappropriation of the amount. 

"The court below has appreciated the evidence on record in the correct perspective and rightly found that the prosecution has succeeded in proving the case beyond reasonable doubt that the accused has committed the offences punishable under Section 13(1)(c) read with 13 (2) of the PC Act and Sections 409, 465, 468, 471 and 477A of IPC. On a re-appreciation of evidence, I find no reason to interfere with the said findings of the court below. Considering the entire facts and circumstances of the case, the sentence imposed by the court below also appears to be reasonable," the Court held while dismissing the appeal. 

Senior Advocate S. Rekha and Special Public Prosecutor of Vigilance and Anticorruption Bureau A. Rajesh appeared on behalf of the respondent. 

Case Title: Enose v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 351

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