(H.L. Dattu, C.J. and Arun Mishra, J.)
V.K. Rama Varma ___________________________ Appellant
v.
Special Police Establishment, Kochi, Kerala _______ Respondent
Criminal Appeal No. 602 of 2008, decided on September 8, 2015
The Order of the court was delivered by
Order
1. This appeal is directed against the common judgment and order passed by the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 486 and 487 of 1997, dated 16.08.2006, whereby and whereunder the High Court has confirmed the order of conviction and sentence passed by the Trial Court for the offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, “the PC Act”) and under Sections 420, 471 and 477-A of the Indian Penal Code, 1860 (for short, “the IPC”).
2. The brief case of the prosecution is that the appellant-herein was an Officer of Indian Bank, Paravoor. While the verification of the account of a transferred officer was being conducted after it was found that his account did not tally, on 28.08.1994 the appellant informed the Bank Manager that he was also involved in fraud and by nine instances he had misappropriated a sum of Rs. 1,40,000/-. On 02.09.1994 the appellant remitted the full amount.
3. An inspection was conducted and two occasions were discovered where the appellant drew amounts of Rs. 5,000/- and Rs. 15,000/- through forged cheques in fictitious names and fictitious account numbers. Further, two occasions were discovered where the appellant drew the amount of Rs. 20,000/- through a forged cheque and the amount of Rs. 20,000/- through a withdrawal slip from the accounts of persons who were not operating their accounts. On the basis of the inspection departmental action was initiated. Thereafter, a First Information Report was registered by the Deputy Superintendant of Police.
4. After the completion of the investigation and obtaining of sanction, a charge-sheet was filed. The Trial Court separated the four occasions when the offences were committed by the appellant into Calendar Case No. 5 and 6 of 1995. Thereafter, the appellant appeared before the Trial Court and after both sides were heard, charges were framed under Sections 420, 457, 468, 471 and 477-A of the IPC and Section 13(1)(d) read with Section 13(2) of the PC Act in Calendar Case No. 5 of 1995 and also Calendar Case No. 6 of 1995. The charges were read over and explained to the appellant who pleaded not guilty. Accordingly, the case was committed to Trial. The appellant filed a petition for joint trial of the two cases, and thereafter the Trial Court clubbed the two cases.
5. In order to substantiate the charges framed against the appellant, the prosecution examined 10 witnesses and presented 44 documents. After the completion of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (for short, “the Code”). One document was recorded in defense of the appellant.
6. Upon detailed consideration of the evidence on record, the Trial Court found that the guilt of the appellant was proved beyond reasonable doubt. Accordingly, the Trial Court convicted the appellant for the offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act and also for the offences punishable under Sections 420, 471 and 477-A of the IPC in respect of all four occasions when offences were committed by the appellant, and sentenced the appellant to undergo rigorous imprisonment for a term of one year each for all the offences in respect of all four occasions when offences were committed by the appellant. The sentences were ordered to run concurrently.
7. Aggrieved by the order of conviction and sentence passed by the Trial Court, the appellant preferred an appeal before the High Court. Upon a close examination of the evidence on record including the judgment and order of the Trial Court, the High Court dismissed the appeal confirming the order of conviction and sentence passed by the Trial Court.
8. Aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.
9. We have heard the learned counsels appearing for the parties to the lis.
10. Shri Siddhartha Dave, the learned counsel for the appellant would assail the judgment and order passed by the High Court and submit that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Apart from arguing on merits of the case, Shri Siddhartha Dave, learned counsel for the appellant would submit that the appellant has immediately returned the misappropriated funds upon discovery of irregularities, and therefore no loss has been occasioned to any customer or the bank. The money was returned on 02.09.1994, 27 days before the First Information Report was registered in the case on 29.09.1994. The learned counsel would submit that this should place the appellant on a better footing and call for leniency to be shown to him.
11. The learned counsel would further submit that the appellant has already been removed from service and has therefore been punished for his offence. The learned counsel would submit that keeping these aspects of the matter in view, the sentence ought to be reduced. Although the appellant has been sentenced to the minimum sentence provided under Section 13(2) of the PC Act, the learned counsel would submit that there have been instances when this Court had found it fit to reduce the sentence below the minimum provided.
12. Per contra, Shri Rana Mukherjee, the learned counsel appearing for the respondent-State would support the judgment and order passed by the High Court.
13. After going through the judgments and orders passed by the High Court and the Trial Court as well as the material available on record, we are of the considered opinion that the well reasoned judgment and order passed by the High Court for the offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act and also for the offences punishable under Sections 420, 471 and 477-A of the IPC needs no interference.
14. Further, the instant case involves serious white collar offences. Such cases do not occasion the use of our powers under Article 142 of the Constitution of India to reduce the sentence below the minimum prescribed by the legislature. However, in the peculiar facts and circumstances of the instant case, we are of the considered opinion that the ends of justice will be met, if we modify the sentence to the limited extent that instead of rigorous imprisonment the appellant should undergo simple imprisonment. Accordingly, we modify the sentence to the extent that instead of rigorous imprisonment the appellant shall undergo simple imprisonment. The Criminal Appeal is disposed of accordingly.
15. The appellant is directed to surrender within one month to serve out the remaining period of sentence.
16. The order passed by us shall not be treated as precedent in any other case.
17. Ordered accordingly.
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