TaxTMI 
TaxTMI 
2004 (4) TMI 574
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....ed 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 deputation by one year stating that certain liabilities were outstanding. But later, the request for extension of deputation was limited upto 30.11.1986 by Ext.P-38 letter dated 4.11.1986 from the Managing Director of the Corporation to the Director of Civil Supplies, Board of Revenue. By the same letter, the Regional Manager of the Corporation, was directed to relieve the accused to his parent department on 30.11.1986 itself. Pursuant to the direction, the Regional Manager issued Ext.P-20 or....
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...., 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 Rs. 33,150/- that of palmolein at Rs. 1,08,000/- and sugar at Rs. 22,620/-. He also reported that the accused had withdrawn loading and transporting charges for these articles as per Exts. P13 and P14 series vouchers. No irregularity was found in the transactions under Imprest, or in the accounts regarding sales and remittance. There was excess stock in the Warehousing Corporation godown as the ration dealers had not lifted and that was tallied by 31.12.1986 also. By Ext. P-1, PW-1 fixed accused's liability including infructuous expenses on transporting and cost of mi....
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....ted 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 ingredients have been established by the prosecution. It is a case where the sanction which was sought for was refused. The prosecution has acted unfairly in taking advantage of the position that after retirement sanction is not necessary under the Act. In any event, in respect of a retired employee sanction is necessary in terms of Section 197 of the Code. Effort has been made to overreach and circumvent law after retirement and such arbitrary action should not be countenanced. Finally, it was submitted that taking note o....
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....nt 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 commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after re....