Anthony Cardoza v. State of Kerala

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
JUDGMENT
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
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
Page7

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

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

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

Deputy Superintendent of Police, Vigilance and Anti Corruption

In the investigation that followed the timber was found in the

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

Pending the trial, Shri Prabhakaran Nair, the

second accused expired and the matter abated against him.

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

land was allotted to the Kerala State Handicapped Persons Welfare

After considering the evidence on record, the trial court found

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

The appellant, being aggrieved, filed Special Leave Petition

challenging the decision of the High Court. Alongwith the application

The special leave to appeal granted vide order dated

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

Having considered the submissions of the learned counsel and

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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