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TMI Blog2004 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... ode, 1860 (in short the 'IPC'). For the offence under the Act, 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. Since he died during pendency of the appeal, his legal representatives sought for impletion and have been impleaded. Accusations which led to trial of the accused are essentially as follows: The accused was employed in the Civil Supplies Department in the rank of Assistant Taluk Supply Officer. He was working as Junior Manager on deputation in the Kerala State Civil Supplies Corporation (in short the 'Corporation'), at Kowdiar. While he was functioning as such, by Ex.P-19 order dated 14.4.1983 of the Regional Manager, of the Corporation, Thiruvananthapuram, he was appointed as Unit Manager of the Corporation, Unit Punalur. Pursuant to the orders he took charge as Unit Manager in the Punalur Unit. His 5 years deputation to the Corporation was to be completed on 30.6.1986. But, instead of relieving him, the Corporation had requested the Civil Supplies Department to extend his term of deputati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck verification report, there was an actual stock of 37.8 quintals of Palmolein and 44 quintals of free sale sugar. Subsequent to 1.4.1986, 100 quintals of paper boiled rice were transferred from the Warehousing Corporation Depot to the self-godown, and 23.65 quintals were returned from the Onam markets in Punalur. Thus, the physical stock should have been 123.65 quintals of boiled rice. But the actual stock found was 21.65 quintals. Thus, there was a shortage of 102 quintals. Similarly, a total quantity of 72 quintals of Palmolein had been transferred from the State Warehousing Corporation godown to the self-godown as per Exts. P9 and P11 goods transfer orders and Exts. P10 and P12 good transfer notes signed by the accused. But, there was no stock of palmolein. There was a stock of 46 quintals of free sale sugar as on 1.4.1986. Out of this 5 quintals had been transferred to the Maveli Store, Punalur as per a consignment note dated 31.10.1986. The stock register showed a closing balance of 30 quintals, but no stock was available in the godown. PW-1 assessed the total value of shortage of rice at ₹ 33,150/- that of palmolein at ₹ 1,08,000/- and sugar at ₹ 22,620/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. C.N. Sree Kumar, learned counsel submitted that in the absence of a sanction for the prosecution in terms of Section 19 of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the 'Code') the whole proceeding was non est and the trial was vitiated. Additionally, it was submitted that the prosecution has not established any mis-appropriation and/or mens rea of the alleged crime and, therefore, both the trial Court and the High Court have acted contrary to law. It was further submitted that both the trial Court and the High Court proceeded on mere surmises and conjectures to hold that the accused had committed mis- appropriation. The essential ingredients necessary to prove the accusations under Section 409 IPC are squarely absent. Additionally, it was submitted that both the trial Court and the High court have attached undue importance to the fact that the accused-appellant had agreed to pay the differential amount. Reliance was placed on a decision of this Court in Jiwan Dass v. State of Haryana (1999 (2) SCC 530) to contend that even if the accused had agreed to pay the amount that was not material while considering the issue whether the ingredien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction. The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application. Section 197(1) provides that when any person who is or was a public servant was not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with. No material was placed in that regard. Therefore, the Courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the Courts below relating to entrustment and mis-appropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference. Coming to the plea relating to benefits under the Probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused- appellant's plea relating to grant of benefit under the Probation Act. The decision in Bore Gowda's case (supra) does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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