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. 625 of 2000(C) CC.58/1999 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT/ACCUSED: C.JAYAKUMAR FORMERLY PEON GENERAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL HIGH COURT BUILDING, ERNAKULAM (DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SIU THIRUVANANTHAPURAM) BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.625 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January 2008 JUDGMENT Appellant and two others were charge sheeted by the Deputy Superintendent of Police, Vigilance & Anti Corruption Bureau, SIU, Thiruvananthapuram, for offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and also under Sections 468, 471, 420 and 120B IPC. But the appellant alone stood trial, since the other two accused had expired in the meanwhile. 2. The trial court after considering the oral and documentary evidence, which comprised of oral testimonies of Pws 1 to 12 and Exts.P1 to P20 on the side of the prosecution and also Ext.D1 on the side of the defence, found the appellant not guilty of the offences punishable under Indian penal Code. However, he was found guilty under Sections 13(2) read with Section 13(1) (d) of the Act and convicted and sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment Crl.A.No.625 OF 2000 :: 2 :: for a period of one month. Hence this appeal. 3. The prosecution case in a nut shell was that the appellant, while working as a peon in the General Administration Department in the Govt. Secretariat, Thiruvananthapuram had, in connivance with deceased L.Peethambaran, the Section Officer and deceased T.Ramachandran, Under Secretary in the General Education Department, Thiruvananthapuram, procured Ext.P1 non liability certificate in order to enable PW1 to secure a loan from Vattiyoorkavu Service Co-operative Bank. For this purpose, the appellant had demanded and received Rs.200/- from PW1 in November 1991. The prosecution alleged that the contents of the non liability certificate were incorrect and therefore the accused who were public servants had committed the offences alleged against them. The other two accused who were stated to be involved in the crime, namely, L.Peethambaran and T.Ramachandran, had expired after the charge sheet was laid before the court. Therefore, the petitioner alone was tried and at the conclusion of the trial he was found guilty as stated Crl.A.No.625 OF 2000 :: 3 :: above. 4. It is not in dispute that appellant was working as peon in the General Administration Department in the Secretariat at the relevant point of time and that he was a public servant. It is also not in controversy that all statutory formalities were complied with for prosecuting the appellant. The trial court, after considering the evidence of the material witnesses, found that the prosecution had totally failed in establishing that the accused had committed offences under Sections 468, 471, 420 and 120B IPC. The learned Judge entered a categoric finding that Ext.P1, non liability certificate of accused No.1 was not a forged document. It was also held that the accused had not used the said document fraudulently or dishonestly. Therefore, the appellant was not found guilty under Sections 471 IPC. Similarly, the learned Judge held that the prosecution had failed to prove that there was any dishonest intention on the part of the appellant to cheat the Bank or to induce it to pay the loan amount. Accordingly, the appellant was not found guilty under Section 420 IPC. A similar finding was entered as regards Crl.A.No.625 OF 2000 :: 4 :: Section 468 IPC as well. 5. However, the learned Judge, while considering the question whether the appellant was guilty of the offences alleged against him under the Act, took the view that evidence on record clearly indicated that the appellant had accepted money from PW1 by corrupt or illegal means. In this context, it may be pertinent to note that the trial court had found that the prosecution had failed to prove that the appellant had committed the offence punishable under Section 7 of the Act. The learned Judge observed that the alleged acceptance of money was not “for doing his duty as a Peon or for forbearing to do his duty as a Peon”. The learned Judge however took the view that the non liability certificate was not issued by the appellant. He had only applied for the same and got it from another office. It was in that view of the matter that the learned Judge held that Section 7 of the Act would not be attracted. But after holding so, the learned Judge entered the finding that the appellant being a public servant ought not to have received any money either for himself or for any other person. Receipt of any Crl.A.No.625 OF 2000 :: 5 :: valuable thing or pecuniary advantage by a public servant either for himself or for any other person would undoubtedly attract the offence punishable under Section 13(1)(d). But it may be noticed that the only evidence on record with regard to the alleged acceptance of Rs.200/- by the appellant from PW1 was that of PW2 alone. Of course PW2 had supported the version given by PW1 with regard to payment of money. But the testimonies of these two witnesses are not without blemish. I find some force in the submission by the learned counsel that the paltry sum received by the appellant could have been towards expenses, even assuming the evidence of PW1 and 2 is believable. In the peculiar facts and circumstances of the case, especially since it had been found by the learned Judge that the appellant was not guilty of the alleged offences against him under the IPC, I am satisfied that it is a fit case to give the benefit of doubt to the appellant. I am persuaded to take the above view for yet another reason. It is on record that the appellant was dismissed from service shortly after he was Crl.A.No.625 OF 2000 :: 6 :: implicated in the case. The alleged incident had taken place in the year 1991 and the amount involved was only Rs.200/-. It had been found by the trial court that the non liability certificate which he procured for PW1 was not a forged document. Therefore, in my view it will be too harsh to convict the appellant for the offence under the Act, particularly since the learned Judge had found him not guilty under Section 7 of the Act. In the totality of the facts and circumstances of the case, I am satisfied that the appellant is entitled to get the benefit of doubt. Accordingly, the order of conviction and sentence passed against the appellant under Section13(1)(d) is set aside and he is acquitted. The bail bond executed by the appellant shall be discharged. Appeal is allowed. (A.K.BASHEER, JUDGE) jes Crl.A.No.625 OF 2000 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.625 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 11th Jan. 2008