IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 CRL.A.No. 438 of 1997() ----------------------- CC.13/1996 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT: ----------- C.JAYAKUMAR, S/O CHAKRAPANI PEON, GENERAL ADMINISTRATION DEPT. (ENGLISH RECORDS), GOVT.SECRETARIAT THIRUVANANTHAPURAM BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER SRI.V.G.SANKARAN RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE (DEPUTY SUPERINTENDENT OF POLICE VIGILANCE HEAD QUARTERS THIRUVANANTHAPURAM) PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS ERNAKULAM, KOCHI - 31 BY ADV. PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2008 ALONG WITH CRRP.904/97, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J --------------------------------- Crl.A.No.438/97 & Crl.R.P.No.904/97 ------------------------------------ Dated this the 11th day of January, 2008 JUDGMENT This Criminal Appeal and Revision Petition are at the instance of accused Nos. 1 and 3 respectively, against the order of conviction and sentence passed against them by the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram in C.C.No.13/96. Though accused No.3 had initially filed a Criminal Appeal as provided under Section 374 of the Code of Criminal Procedure read with Section 27 of the Prevention of Corruption Act, later, it was converted as Revision Petition. But in the facts and circumstances, I do not deem it necessary to advert to the question of maintainability of revision at this belated stage, since at any rate an appeal is maintainable against the order impugned. 2. Vigilance Department, Thiruvanathapuram had prosecuted and laid charge sheet against the accused, (three in number) alleging commission of offences punishable under Sections 7 and 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 and also under Section 120(B), 468, 471 and 420 read with Section 420 IPC. The gist of the prosecution CRA.438/97 & CRRP.904/97 2 case was that the three accused, while working in their capacity as Peon, Gardener and Section Officer respectively in the Govt. Secretariat at Thiruvananthapuram during August 1992, and being public servants, had entered into a criminal conspiracy with an intention to obtain illegal gratification from PW1 and created forged salary certificates and issued them to PW1 to be produced before the Palode Co-operative Agricultural Development Bank Ltd in order to enable PW1 to obtain a loan from the said bank. It was further alleged that accused No.3 had prepared the salary certificates of first and second accused as well as that of one K.Appukuttan Pillai by forging the signature of one L.Peethambaran ( since then deceased )who was working as section officer in the Secretariat. The accused had issued the certificates to PW1, creating an impression that they were genuine, after obtaining illegal gratification of a sum of Rs. 800/- from him. 3. The prosecution had examined PW1 to PW 17, and Exhibits P1 to P10 were also marked on its side. Though there was no oral evidence on the side of the defence, Exts.D1 and D2 were produced on its side. The trial court after an elaborate CRA.438/97 & CRRP.904/97 3 consideration of the oral and documentary evidence on record, found accused No.2 not guilty and he was accordingly acquitted. However, accused No.1 was found guilty under Section 465 IPC and he was convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for one month. He was also found guilty under Section 420 IPC and convicted and sentenced to suffer rigorous imprisonment for one year. Similarly he was found guilty under Section 120 (B) read with section 465 IPC and was convicted and sentenced to undergo rigorous imprisonment for six months each. It was further directed that in default of payment of fine, he shall suffer rigorous imprisonment for one month. He was found not guilty of the offences under the Prevention of Corruption Act. 4. Accused No.3 was not found guilty of any of the offences punishable under the Prevention of Corruption Act and was accordingly acquitted. But he was found guilty under Section 120(B) read with Section 465IPC and convicted and sentenced to undergo rigorous imprisonment for six months each and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment CRA.438/97 & CRRP.904/97 4 for a further period of one month. The substantive sentence of imprisonment imposed on the two accused was directed to run concurrently. 5. It is not in dispute that accused 1 and 3 were public servants coming within the purview of the Prevention of Corruption Act 1988 at the relevant point of time. It is also not in dispute that they were prosecuted after obtaining necessary sanction from the authority concerned. PW1 had deposed before the court that in August 1992 he had applied for a loan from Palode Co-operative Agricultural Development Bank Ltd (for short the bank) for purchasing a jeep. The bank had informed him that loan could be granted if he produced two sureties who were salaried employees in any government department. Accordingly PW1 approached PW2 whose mother was an employee in the Secretariat. PW1 went to the Secretariat along with PW2 and met accused No.1 who offered to procure requisite salary certificates on condition that he was paid Rs. 600/-. PW1 agreed that the amount would be paid. Accordingly accused No.1 procured Exts.P1(d) and P1(e) salary certificates respectively of his own and that of accused No.2 after receiving Rs. 600/- from PW1. CRA.438/97 & CRRP.904/97 5 Since the bank insisted that salary of the sureties should be not less than Rs. 4000/- per month, PW1 approached accused No.1 again and requested him to procure appropriate certificates. Accused No.1 made a further demand of Rs. 200/- which PW1 agreed to pay. Thereafter accused No.1 procured Ext.P1(c) certificate in the name of one Sri.K.Appukuttan Pillai. PW1 further deposed that a confirmation letter as requested by the bank was also procured by accused No.1. Ext.P1(f) is stated to be the said confirmation letter which was allegedly prepared and signed by deceased L.Peethambaran ( CW11). PW2 who was stated to be a friend of PW1 supported the prosecution case and deposed that he had accompanied PW1 to the Secretariat and introduced accused No.1 to PW1. 6. PW3 who was working as the Supervisor in the Bank deposed before the court that Ext.P1 application was submitted by PW1 for the loan along with Ext.P1(c), P1(d) and P1(e) certificates and also Ext.P1(f) confirmation letter. PW3 however stated that the loan was ultimately not sanctioned since some difference was noticed in the signatures in the salary certificates as well as the confirmation letter. PW1 had also admitted that he CRA.438/97 & CRRP.904/97 6 has not received the loan from the bank. PW4, another official of the bank, had corroborated the evidence of PW3. 7. PW5 who was working as Under Secretary in the General Administration Department ( Accounts) in the Govt. Secretariat during the relevant period, deposed before the court that the carry home pay of accused No.1 was only Rs. 39/- at the time of issuance of Ext.P1(c) certificate and that deceased L.Peethambaran, the Section officer had no authority to issue salary certificates ( Ext.P1 (c ), P1(d) and P1(e)). 8. PW6 , another under Secretary in the same department, had deposed that Ext.P1(e) certificate of accused No.2 was never issued from the office of accused No.2 since the said person was on unauthorised leave at the relevant point of time. It was also deposed by PW6 that no person in the name of K.Appukuttan Pillai had been working in the said department as Peon. PW7 stated before the court that he was familiar with the signature of L.Peethambaran and that the signatures found in Exts.P1(c), P1(d), P1(e) and P1(f ) were not that of Sri.Peethambaran. Similarly PW8 who was the Garden Supervisor had stated before the court that accused No.2 was unauthorisedly CRA.438/97 & CRRP.904/97 7 absent during the relevant period and that the alleged signature of accused No.2 found in Ext.P1(e) was not that of his. Any how as mentioned earlier, the trial court had found accused No.2 not guilty and therefore I do not propose to deal with the case as against him at length. 9. PW9 who was working as Assistant in the General Administration Department ( Accounts) had deposed before the court that he had been preparing the salary bills of the employees in that department and that there was similarity in the signature found on the reverse of Ext.P1(d) and P1(c) and that of accused No.1. 10. PW10, under Secretary in the Labour Department stated that he was familiar with the handwriting and signature of accused No.3 who had worked under him as Section Officer in Parliament Section. He further stated that the handwriting seen in Ext.P1(c), P1(d) and P1(e) appeared to be that of accused No.3. PW10 also stated that Ext.P7(a) to P7(k) notings in Ext.P7 file were prepared by accused No.3 and put up before him. 11. The other important prosecution witness was PW15, the Forensic Expert. His evidence supported the prosecution case CRA.438/97 & CRRP.904/97 8 that the disputed salary bills were prepared by accused No.3. PW15 who was working as Assistant Director ( Documents) in the Forensic Science Laboratory at Thiruvananthapuram had submitted Ext.P6 report after examining the standard writings and the disputed writings. PW15 categorically stated before the court that the disputed writings in Ext.P1(c), P1(d) and P1(e) which were marked as Q1 to Q18 by him, were written by the same person who had written Ext.P7 (a) to P7(k) standard writings. 12. In short the evidence of PW10 the under Secretary of the Department in which accused No.3 had been working and that of PW15 hand writing expert fully corroborated the prosecution case that accused No.3 had made the writings in the salary bills. But the learned Judge while dealing with the evidence on this aspect observed that “the fact that a forged document was written by the third accused was not at all a sufficient reason to conclude that the third accused had forged those documents”. The evidence of PW7was categoric that Ext.P1(c), P1(d) and P1(e) were not signed by deceased L.Peethambaran. After noticing the above fact, the learned Judge proceeded to consider the question CRA.438/97 & CRRP.904/97 9 as to who could have forged the documents which were produced by the prosecution. The learned Judge after observing that there was no direct evidence in this regard, had jumped to the conclusion that Ext.P1(c), P1(d), P1(e) ,P1(f) and P1(h) “ might have been forged” “ without notice to any other person”. Learned Judge further proceeded to observe that what was probable in cases like this was to arrive at a conclusion with reference to the circumstances available on record, and that so long as no explanation was forthcoming from the side of prosecution, it had to be concluded that the person who handed over the documents to PW1 “ might have” forged the signatures. According to the learned Judge the possibility of accused No.1 of three forging the signature of L.Peethambaran was “ very wide” and could not be overruled. The learned Judge further noticed the case of accused No.3 that the writings in the loan application form might have been filled up by accused No.3 could not be accepted since accused No.3 is admittedly a gazetted officer. As deposed by PW5 accused No.3 was not the drawing officer. Under normal circumstances he could not have prepared or issued the certificates. The only suggestion put to PW15 was that he had not CRA.438/97 & CRRP.904/97 10 properly examined either the admitted or disputed writings. Learned Public Prosecutor submits that it had been conclusively proved that the writings in Ext.P1(c), P1(d) and P1(e) were made by none other than accused No.3. 13. Learned counsel for the two accused have taken me through the deposition of the material witnesses elaborately. I have also perused the relevant documents carefully. Having regard to the entire facts and circumstances, I do not find any reason to disbelieve PWs 1 to 3, 5, 7, 10, 15 and 17. 14. It had come out in evidence that accused No.1 procured the salary certificates in question with the connivance and assistance of accused No.3. The expert evidence showed that the writings in the disputed documents were that of accused No.3. No proper explanation had been given by the accused with regard to the forged documents. More importantly it had come out in evidence that deceased L.Peethambaran who was the then section officer had never signed in any of the documents referred to above. On the contrary the evidence was that accused No.3 had made the writings in those documents. The evidence of PW1, 2 and 3 further showed that accused No.1 was instrumental in CRA.438/97 & CRRP.904/97 11 procuring salary certificates. Having regard to the entire oral and documentary evidence on record, I do not find any reason to interfere with the finding of guilty entered by the trial court against accused Nos. 1 and 3. Since the prosecution has not challenged the finding of not guilty of the charge under the Prevention of Corruption Act, it is not necessary to deal with those aspects. 15. Having regard to the peculiar facts and circumstances of the case, particularly the fact that the two accused had lost their job and both of them are in impecunious circumstances ever since 1992, I am satisfied that interference is warranted with regard to the sentence imposed on them. I am persuaded to take this view for yet another reason. 16. It is on record that no pecuniary loss had been caused either to the department or to the Bank. Accused No.1 had allegedly received a sum of RS. 800/- from PW1. In my view the sufferings undergone by the two accused would be sufficient and no further lengthy incarceration is warranted. 17. Therefore, while confirming the order of conviction, sentence of imprisonment imposed on accused 1 and 3 is CRA.438/97 & CRRP.904/97 12 modified and reduced. Accused No.1 is directed to suffer imprisonment for one day each under Section 465 and 420 and Section 120(B) read with Section 465 IPC. He shall also pay a fine of Rs. 10,000/- each under the above three counts and in default of payment of fine, he shall suffer rigorous imprisonment for three months each. 18. Similarly accused No.3 shall suffer imprisonment for one day under Section 120(B) read with section 465 IPC and he shall also pay Rs. 10,000/- as fine and in default of payment of fine, he shall undergo rigorous imprisonment for three months. The substantive sentence of imprisonment for one day shall run concurrently. 19. The two accused shall appear before the court below on 05/02/2008. On their appearance the court below shall execute the sentence as aforesaid. Criminal Appeal and Criminal Revision Petition are disposed of in the above terms. A.K.BASHEER. JUDGE sv. CRA.438/97 & CRRP.904/97 13