N. BHARGAVAN PILLAI (DEAD) BY LRS. AND ANR. versus STATE OF KERALA

Citation: [2004] SUPP. 1 S.C.R. 444 · Decided: 20-04-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
N. BHARGA VAN PILLAI (DEAD) BY LRS. AND ANR. 
V. 
ST A TE OF KERALA 
APRIL 20, 2004 
[DORAISWAMY RAJU ANDARIJITPASAYAT,JJ.] 
Prevention of Corruption Act, 1947; Section 5(2) and 19-Criminal 
Procedure ·code, 1973 : Section 197-Penal Code, 1860; Section 409-
C Pr.;bation of Offenders Act, 1958; Section 18-Public Servant-Cognizance 
of offence of misappropriation of stock without previous sanction- Co"ectness 
of-Held, sanction not a condition precedent for an offence of 
misappropriation-On facts, entrustment of stock was proved-Hence, 
conviction upheld. 
D 
Appellant was on deputation for 5 year as Junior Manager in State Civil 
Supplies Corporation. Subsequently, he was appointed as unit Miinager in a 
Unit- depot of the Corporation. On the last day of the period of deputation, the 
appellant went on leave without handing over charge and keys of the godown 
to his successor. PW 3, the successor, assumed charge of the depot. The 
E appellant reported for duty and in the presence of PW 2, opened the godown. 
When the stock taking was done in the godown, it was found that there was 
a shortage of stock of rice, palmoline and sugar worth Rs. 1,63,770. the 
appellant deposited Rs. 50,000 immediately and undertook to pay the balance 
of the amount in instalments. The appellant was suspended from service. The 
Managing Director of the Corporation reported the matter to Director of 
F Vigilance (Investigation) and he directed registration of a case against the 
appellant. In the mean time, the appellant retired from service and hence 
sanction for the prosecution was not obtained. The trial court cnvicted the 
appellant under section 5(2) of the Prevention ofCorruptionAct,1947 and 
section 409 IPC and was sentenced to undergo rigorous imprisonment for 
G two years and a fine of Rs. 1,00,000 with default stipulation. The High Court, 
in appeal, confirfued the conviction and sentence. 
H 
In appeal to the Court, the appellant contended that requisite sanction 
under Sec.tion 19 of the Prevention of Corruption Act, 1947 and Section 197 
444 
N.B. PILLAI v. STATE OF KERALA 
445 
Cr.Pc has not been obtained before framing cha.rg\s and hence the whole A 
proceeding is non est; that the prosecution has not established any mis-
appropritation and/or mens rea of the alleged crime by the appellant; that the 
essential ingredients necessary to prove the accusation under section 409 
IPC are absent; and that the benefit under the Probation of Offenders Act, 
1958 should be given since he undertook to pay the differential amount and B 
also deposited part of the amount. 
The respondent-State contended that the mis-appropriation done by the 
appellant was not his official duty and hence sanction under Section 197 Cr.PC 
is not required; that the benefit of the Probation of Offenders Act, 1958 is 
not available to the appellant. 
C 
Dismissing the appeal , the court 
HELD:l.1 Sanction under Section 197 Cr,PC is not a condition precedent 
for an offence under section 409 IPC. (451-CJ 
Jiwan Dass v. State of Haryana, (1999) 2 sec 530; Bore Gowda v. D 
State of Karnataka, (2000] 10 SCC 260; Kalicharan Mqhapatra v. State of 
Orissa, (1998) 6 SCC 411; R. Balakrishna Pillaiv. State of Kera/a, AIR (1996) 
SC 90ll and State pf MP. v. MP. Gupta, JT (2003) IO SC 32, referred to. 
1.2. The actual mode of entrustment or mis-appropriation is not to _be E . 
proved by the prosecution. Once entrustment is proved, it is for the appellant 
to prove as to how the property entrusted was dealt with. It was not only on the 
basis of the undertaking that the conviction was recorded, but the other 
evide\)Ce on record also unerringly proved entrustment. Therefore, it was for 
the appellant to prove as to how the property entrusted with him was dealt 
with. No material was placed in that regard. Therefore, the courts below F 
correctly held entrustment to have been proved. The concurrent findings of 
fact recorded by the courts below relating to entrustment and mis-
appropriation 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. [451-D-G) 
1.3. Section 18 of the Probation of Offenders Act, 1958 rules out 
application of the Probation Act to a case covered under Section 5(2) of the 
Act. Therefore, there is no substance in appellant's plea relating to grant of 
benefit under the Probation Act. [451-G; 452-AJ 
G 
H 
446 
SUPREME COURT REPORTS [2004)
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