TaxTMI 
TaxTMI 
2022 (12) TMI 1415
X X X X Extracts X X X X
X X X X Extracts X X X X
.... judgment and order dated 27.04.2009 in both the aforesaid cases convicted the appellant herein-accused for offences under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 ('the Act', for short) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The accused was further convicted for the offence under Section 409 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently. 4. The appellant herein was released on bail vide order of this Court dated 30.01.2017 subject to fulfilment of the conditions imposed by the Trial Court. Facts of the Case: 5. Succinctly stated, the case of the prosecution in C.C. No. 24 of 2003 is that while the accused was working as Agricultural Officer, State Seed Farm, Perambra, for the period 31.05.1991 to 31.05.1994, he abused his official position as a public servant and committe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....1994); C.C. No. 13 of 1999 (for offences committed for the period from 15.12.1992 to 31.03.1993) and C.C. No. 14 of 1999 (for offences committed for the period from 05.03.1994 to 08.03.1994) were registered against the accused under Section 13(1)(c) read with Section 13(2) of the Act and Sections 409 and 477A of IPC. The Accounts Officer conducted an audit in the State Seed Farm, pertaining to the period from 31.05.1991 to 31.05.1994 and gave a report. On the basis of the same, the two cases, out of which this appeal arises, were registered against the appellant herein. The FIR in respect of the present cases was registered on 03.12.2001. It is prosecution's case that it was in the re-audit, that these instances were unearthed and therefore the two cases, C.C. No.24/2003 and C.C. No.25/2003, were registered against the appellant herein. 8. Charges were framed against the accused for the said offences on 30.06.2007 and the same were read over and explained to the accused to which the accused pleaded 'not guilty' and claimed to be tried. The accused filed an application for joint trial, being CMP No. 1019 of 2008 which was allowed and therefore both the cases were tried together.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to the auction purchaser. On 28.05.1993, 5510 coconuts were harvested and auctioned. The two-thirds of the auction amount was Rs.17,449/. The accused did not remit the said amount after collecting the same from the auction purchaser. v. That Rs.2,098/- being two-thirds of the proceeds from the auction of 1049 kgs of half-filled grains auctioned on the same date and Rs.488.80/- being the price of 104 coconuts harvested on 24.08.1992 and 25.08.1992 were also not remitted to the SubTreasury and the accused had misappropriated the said amounts for his own gain. Similarly, an amount of Rs.58,671/- was misappropriated by the accused from the auction proceeds of coconuts harvested from the State Seed Farm, Perambra from 01.03.1993 to 12.04.1994. vi. That the charges levelled in the present two cases were for the period from 27.04.1992 to 25.08.1992 and from 01.03.1993 to 12.04.1994. In the previous case, the accused had misappropriated some amount to be paid to the Proprietor, Agricultural Marketing Corporation, Kozhikode; Kerala State Coir Marketing Corporation, Kozhikode, from the State Seed Farm, Perambra by falsifying and forging the records. That the accused also ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Joint Director of Agriculture and the Deputy Director of Agriculture, she had not taken possession of the documents or properties of the office at the Seed Farm at Perambra since no such documents were available at the office. iv. That as per the statement of PW4 who assumed charge as an Agricultural Officer at the State Seed farm, Perambra for the period from 07.06.1994 to 24.04.1997, he did not receive any cash book for the period from 10.02.1992 to 11.03.1994. The appellant herein entrusted the cash book for the period from 12.03.1994 to 03.06.1994 and cash balance of Rs.2,763/- after PW4 took charge. That from the evidence of PW4, it was clear that he did not get the cash book at the time of taking charge and only after he assumed charge, the appellant entrusted to him the cash book and the cash balance. When there is no challenge with regard to the fact that the appellant had handed over the cash book for the period from 12.03.1994 to 03.06.1994, it goes without saying that he had never handed over the earlier cash book. No further proof was required. v. That as a responsible gazetted officer, the appellant ought to have exercised more caution and therefore....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inst him in C.C. No.13/1999 i.e., acquitted of all the charges levelled against during the period from 15.12.1992 to 31.03.1993. However, the appellant herein was convicted of the charges in C.C. No.12 and 14 of 1999. The petitioner herein was dismissed from service on 02.05.2001. The FIR in the present cases was filed on 03.12.2001 after the appellant herein was dismissed from the service and the judgment of the Trial Court was passed. The allegations/offences in the present two cases could have been framed at the previous trial and the appellant herein could have been tried for the same along with the trial of the earlier three cases. 14.5 If the accused was to be tried again for the present offences, previous consent of the State Government is necessary as is mandated under sub-section (2) of Section 300 of the CrPC. 14.6 The charges framed in the present case pertain to several acts of misappropriation and falsification of accounts. The same were allegedly committed in the course of same transaction/same series of acts. For a series of acts to be regarded as the same transaction, they must be connected. That the different acts of misappropriation alleged against the accus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....terference or modification by this Court? (c) What order? Discussion: 17. The learned counsel for the appellant has contended that there is a bar to the prosecution in the two cases namely - since the appellant herein has already been prosecuted as well as punished for the same offences, in same set of facts. That prosecuting the appellant herein in the present two cases would amount to double jeopardy. In India, protection against double jeopardy is a fundamental right enshrined under Article 20(2) of the Constitution of India. Section 300 of the CrPC is also based on the said principle. 18. Before proceeding further, it is pertinent to understand the concept of double jeopardy. As per the Black's Law Dictionary, 9th Edition, 'double jeopardy' is defined as "being prosecuted or sentenced twice, for substantially the same offence". 19. The word 'jeopardy' is used to designate the danger of conviction and punishment which an accused in a criminal action incurs. 'Jeopardy' implies an exposure to a lawful conviction for an offence for which a person has already been acquitted or convicted. The terms 'double jeopardy', 'former jeopardy', 'jeopardy for life or limb'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. Explanation.-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section." 22. Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acqui....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osecution and punishment for the same offence. On a plain reading the of sub clause (2) of Article 20, it is clear that the said provision bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously vide S.A. Venkataraman vs. Union of India AIR 1954 SC 375 ("S.A. Venkataraman"). But this clause does not bar subsequent trial if the ingredients of the offences in the previous and subsequent trials are distinct. In Maqbool Hussain vs. State of Bombay AIR 1953 SC 325, this Court has held that clause (2) is not applicable unless the person has been both prosecuted and punished. 27. There are three conditions for the application of the clause. Firstly, there must have been previous proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eviously either been acquitted or has been convicted and undergone the punishment, affects the person's right to live with dignity. 30. Double jeopardy is often confused with double punishment. There is a vast difference between the two. Double punishment may arise when a person is convicted for two or more offences charged in one indictment however, the question of double jeopardy arises only when a second trial is sought on a subsequent indictment following a conviction or acquittal on an earlier indictment. This doctrine is certainly not a protection to the individual from peril of second sentence or punishment, nor to the service of a sentence for one offence, but is a protection against double jeopardy for the same offence that is, against a second trial for the same offence. 31. Before this Court, the appellant has vehemently contended that he was employed as the Agricultural Officer, State Seed Farm, Perambra during the period from 31.05.1991 to 31.05.1994. He also held an additional charge of Agricultural Officer, Krishi Bhavan, Perambra for the period from 20.10.1993 to 27.10.1994. The appellant had to rely on his subordinate for performing various office works. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cultural Officer would have field work too, and would also go out for periodical conferences. 34. PW-12 was the Accounts Officer of the Principal Agriculture Office, from 24.01.1996 to 31.08.1998. In his testimony, he stated that during that period, he conducted re-audit of the Seed Farm from for the period from 01.04.1992 to 31.12.1994. The re-audit was done since there were objections that the details of the income of the farm were not checked in detail. The Agricultural Officer for the period from 01.04.1992 to 03.06.1994 was T.P. Gopalakrishnan, the appellant herein; from 04.06.1994 to 06.06.1994 was Mini; and from 07.06.1994 was Vinod Kumar. Since there were irregularities in the previous audit, re-audit was done. In his cross-examination, PW-12 stated that he had not seen the departmental audit that was firstly conducted. During his audit period, the accused was under suspension. In his crossexamination, this witness stated that he did not know the reasons for non-availability of the cash book and other documents in the office. 35. PW-13 is the Deputy Superintendent of Vigilance and AntiCorruption Bureau, Kozhikode who registered the FIR in the present case on 05.12.200....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for offences under Section 13(1)(c) read with Section 13(2) of the Act and Sections 409 and 477A of the IPC and was convicted in two cases and acquitted in one case. The present two cases arise out of the same set of facts and the same transaction as that in the previous three cases wherein the appellant was tried and convicted/acquitted respectively. As already discussed above, for an offence to be considered as the 'same offence' as the last offence, it is necessary to show that the offences are not distinct and the ingredients of the offences are identical. The previous charge as well as the present charge is for the same period of misappropriation. The matter of offences in all the previous three cases and the present case are the same and are said to be committed in the course of same transaction while holding the one and same post of Agricultural Officer by the appellant. 38. The Trial Court has erred in holding that the facts of previous case and misappropriation committed by the accused are not the same as the facts relevant to present case. The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he mandate under Section 300(2) of the CrPC, the consent of the State Government is necessary. Even if it is assumed for the sake of argument that the allegations are different in present cases from those in the previous cases, the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused-appellant and therefore the trial in the instant case is unlawful. 40. It would not be wrong to say that the charges framed against the accused reveal that there were several acts of misappropriation and falsification of accounts however the same were committed in the same transaction as the one for which he was prosecuted in the year 1999. The series of acts alleged against him are so connected to one another. 41. Sub-section (2) of Section 300 of the CrPC states that when the charge of the second trial is for a distinct offence, the trial is not barred. This means that if a person is acquitted or convicted of any offence, he may be tried for a distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220 of the CrPC but the same is subject to a condition precedent be....