2004 (4) TMI 574 - SC - Indian Laws

Whether the judgment rendered by learned Single Judge of the Kerala High court upholding appellant s conviction under Section 5(2) of the Prevention of Corruption Act, 1947 (in short the Act ) and Section 409 of the Indian Penal Code, 1860 (in short the IPC ) correct wherein he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹ 1,00,000/- with a default stipulation of 6 months imprisonment and sentence of one year for the offence under the IPC?

Summary

Issues Involved:
1. Sanction for prosecution under Section 19 of the Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure.
2. Establishment of misappropriation and mens rea.
3. Application of the Probation of Offenders Act, 1958.

Detailed Analysis:

1. Sanction for Prosecution:
The appellant contended that the absence of sanction under Section 19 of the Prevention of Corruption Act, 1947, and Section 197 of the Code of Criminal Procedure, 1973, rendered the proceedings non est and vitiated the trial. The court clarified that a public servant who committed an offence under the Act could be prosecuted without sanction if he ceased to be a public servant when the court took cognizance of the offence. The court cited Kalicharan Mahapatra v. State of Orissa, emphasizing that the legal position remains unchanged even if the accused had retired. The court also noted that misappropriation is not part of an employee's official duty, thus not requiring sanction under Section 197 of the Code.

2. Establishment of Misappropriation and Mens Rea:
The court held that the prosecution does not need to prove the actual mode of entrustment or misappropriation. Once entrustment is proven, it is the accused's responsibility to explain how the entrusted property was dealt with. The trial court and the High Court found that the accused had agreed to pay the differential amount, which was not the sole basis for conviction. The other evidence on record unerringly proved entrustment and misappropriation. The court dismissed the appellant's reliance on Jiwan Dass v. State of Haryana, stating that the factual scenario was different, and the evidence in the present case supported the conviction.

3. Application of the Probation of Offenders Act, 1958:
The appellant sought the benefit of the Probation of Offenders Act, 1958, citing Bore Gowda v. State of Karnataka. However, the court noted that Section 18 of the Probation Act clearly excludes its application to cases covered under Section 5(2) of the Prevention of Corruption Act. The court held that the decision in Bore Gowda's case did not consider Section 18 and thus could not be treated as a binding precedent. Consequently, the appellant's plea for benefits under the Probation Act was dismissed.

Conclusion:
The court dismissed the appeal, affirming the concurrent findings of the trial court and the High Court regarding the accused's guilt under Section 5(2) of the Prevention of Corruption Act and Section 409 of the Indian Penal Code. The court upheld the sentences and fines imposed, emphasizing that the proceedings were conducted in accordance with the law, and the evidence on record justified the conviction. The appellant's arguments regarding the necessity of sanction for prosecution and the application of the Probation Act were rejected.