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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.19 OF 2013

ANTONY CARDOZA …. Appellant

Versus

STATE OF KERALA    …. Respondent

J U D G M E N T  

Uday U. Lalit, J.

1. This appeal by special leave to appeal arises out of judgment  

and order dated 18.03.2011 passed by the High Court of Kerala at  

Ernakulam  in  Criminal  Appeal  No.249/2000(A)  by  which  it  was  

pleased to affirm the order of conviction and sentence recorded by the  

learned Special Judge Thiruvananthapuram in CC No.3 of 1999.

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2. On 15.10.1997 FIR No.9 of 1997 was registered pursuant to  

Deputy  Superintendent  of  Police,  Vigilance  and  Anti  Corruption  

Bureau, Thiruvananthapuram reporting that in the vigilance inquiry it  

was revealed to the following effect:

“A jack tree of about 40 years of age was cut and  kept in the compound of 10 Cents of land owned  by the Kerala State Handicapped persons welfare  corporation  Thiruvananthapuram  at  Pojoppura.  Shri  Antony  Cardoza,  Managing  Director  of  the  Corporation got it removed and cut into convenient  pieces on 24.06.1996 and took it to his residence at  Alapuzha  on  25.06.1996  through   A  Vasudevan  Nair.  Shri Prabhakaran Nair, L.D. Accountant met  the expenses of Rs.690/- by way of labour charge  for  this  purpose  which  was  never  claimed  reimbursement  from the corporation.  Thus Shri  Antony  Cardoza  being  the  servant  of  the  Corporation  as  M.D.  with  wrongful  intention  committed  threft  of  jack  tree  wood worth  about  Rs.10,000/- which was cut down and kept in the  land  of  the  corporation  at  Poojappura  and  Sh.  Prakahakaran Nair, L.D. Accountant intentionally  facilitated Sh. Antony Cardoza in the commission  of the offence punishable under Section 381 and  109 IPC and Section 13(2) read with Section 13(1) (c) of PC Act, 1988.”

3. In the investigation that followed the timber was found in the  

house of Shri Antony Cardoza, Managing Director of the Corporation,  

i.e. the  appellant, situated at Alappuzha.  Search list Ext.P9 bears the  

signature of the wife of the appellant.  After due investigation charge-

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sheet was filed against the appellant and Shri Prabhakaran Nair, L.D.  

Accountant  for  having  committed  the  offences  punishable  under  

Sections 409 read with Section 120B IPC and under Section 13(1)(c)  

read with Section 13(2) of the Prevention of Corruption Act, 1988 (for  

short  the  ‘PCA’).    Pending  the  trial,  Shri  Prabhakaran  Nair,  the  

second accused expired and the matter abated against him.

4.  It was alleged by the Prosecution that an extent of 10 cents of  

land was allotted to the Kerala State Handicapped Persons Welfare  

Corporation  (‘the  Corporation’  for  short)  for  construction  of  a  

building for its head-office from and out of land wherein the quarters  

of Juvenile Home Superintendent are located.  There was a jack tree, a  

mango tree and few coconut trees in this piece of 10 cents of land.  

Said jack tree was cut and timber thereof was lying on the plot.  It was  

alleged that the accused in conspiracy got the timber removed in a  

mini lorry from Thiruvananthapuram and the timber was transported  

to the house of the present appellant at Alappuzah.  It was the case of  

the prosecution that the timber was sawn and transported to the house  

of  the  appellant  under  the  instructions  of  Shri  Vasudevan  Nair.  

Reliance was placed on Ext.P1 being photocopy of the letter written  

by  the  appellant  in  his  own  hand  on  his  letterhead,  bearing  his  

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signature and Ext.P6 being a letter written in the hand of said Shri  

Vasudevan Nair on the letterhead of the Corporation. ).  We have been  

informed that  the  distance  between  these  two places  is  about  140  

KMs. In defence no explanation was offered for the presence of sawn  

timber in the house of the appellant nor did he offer any explanation  

as regards Ext.P1 and P6.

5. After considering the evidence on record, the trial court found  

that the offences under Section 409 IPC read with Section 120B IPC  

so  also  under  Section  13(1)(c)  read  with  13(2)  of  the  PCA  were  

proved against the appellant. The appellant was thus convicted under  

the  said  sections  vide  judgment  and  order  dated  24.03.2000  and  

sentenced to undergo rigorous imprisonment for  three years and to  

pay fine of Rs.5,000/- under Section 120B IPC read with Section 109  

and 409 IPC.  He was further sentenced to rigorous imprisonment for  

a term of three years and to pay a fine of Rs.7,000/- under Section 409  

IPC and to rigorous imprisonment for two years and to pay fine of  

Rs.8,000/- under Section 13(1)(c) read with Section 13(2) of the PCA.  

The substantive sentences were directed to run concurrently.   

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6. The matter was carried by the appellant in appeal  before the  

High Court  of  Kerala  at  Ernakulam.   It  was  submitted  that  for  a  

charge  to  be  proved  under  Section  409  IPC  entrustment  of  the  

property has to be proved.  After considering the entire evidence on  

record the High Court observed that letters Ext. P1 and P6 revealed  

that the wooden logs were under the control of the appellant and that  

the entrustment and misappropriation were established and there was  

no doubt that the property was taken away by the present appellant.  

The High Court  thus affirmed the view taken by the trial  court  as  

regards conviction and sentence.

7.  The  appellant,  being  aggrieved,  filed  Special  Leave  Petition  

challenging the decision of the High Court. Alongwith the application  

for release on bail,  certificates as regards medical ailments that the  

appellant suffers from, were also appended. This Court while issuing  

notice on 30.06.2011 was pleased to order the release of the appellant  

on  bail.   The  special  leave  to  appeal  granted  vide  order  dated  

02.01.2013.

8.  Mr.  P.H.  Parekh,  learned  Senior  Counsel  appearing  for  the  

appellant submitted that the ingredients of Section 409 IPC were not  

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attracted in the present case.  It was further submitted that the timber  

was simply lying in the house of the appellant and that the property  

was not converted to his use.   Mr. V. Shyamohan, learned Additional  

Standing  counsel  appearing  for  the  State  of  Kerala  –respondent,  

emphasized that the timber was found at a distance of 140 Kms. and  

such  timber  was  never  accounted  for  in  the  accounts  of  the  

Corporation.

9. Having considered the submissions of the learned counsel and  

gone through the record, we are of the view that the ingredients of the  

offence  under  Section  409 IPC are  clearly  attracted  in  the  present  

case.  As Managing  Director  of  the  Corporation,  the  appellant  was  

having  dominion  over  the  property  in  question  in  his  capacity  of  

public servant. The removal of timber from the plot in question to the  

house of the appellant at a considerable distance and non-accounting  

thereof in the books of the Corporation are very clinching and relevant  

circumstances.  We  therefore  uphold  the  order  of  conviction  as  

recorded by the Courts below.

10.  However, regard being had to the age and medical condition of  

the  appellant,  we  deem  it  appropriate  to  reduce  the  substantive  

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sentence  on  each  count  to  simple  imprisonment  for  one  year  

maintaining the  order  as  regards  fine and sentence  in  default.  The  

appellant is directed to surrender within three weeks to undergo the  

remaining  sentence.  The  appeal  thus  stands  partly  allowed  in  the  

aforesaid terms.

………………………..J. (Dipak Misra)

………………………..J. (Uday Umesh Lalit)

New Delhi, November 14,   2014

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