IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 CRL.A.No. 502 of 2000(C) C.C.26/1998 OF THE ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT/ACCUSED NO.1: A.SANTHAMMA, PEON REVENUE (B) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM (FORMERLY PEON, PWD (F) DEPARTMENT) SECRETARIAT BY ADV. SRI.M.T.SURESHKUMAR RESPONDENTS/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008 ALONG WITH CRL.A.NOS.539/00, 541/00 & 621/00, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.502, 539, 541 & 621 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January 2008 JUDGMENT These 4 appeals are at the instance of accused Nos.1,3,4 and 5 respectively who were tried for offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 and Sections 468, 471, 420 and 120B IPC in CC.No.26/1998 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. 2. While accused Nos.1 and 2 were found guilty under section 120B, 468, 471 and 420 IPC and also under Section 13 (1)(d) read with Section 13(2) of the P.C.Act and convicted and sentenced thereunder, accused No.3 was found guilty under Section 120B and 420 IPC and under Section 13(1)(d) read with Section 13(2) of the P.C.Act. He was found not guilty under Section 7 of the P.C.Act and under Sections 468 and 471 IPC. The trial court found accused No.4 guilty under Section 120-B IPC and under Section 15 of the P.C.Act. He was found not guilty of the other offences mentioned above. Similarly accused Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 2 :: No.5 was found guilty under Section 120B , 468, 471 and 420 IPC and Section 15 of the P.C. Act. He was found not guilty under Section 7 and 13(1)(d) read with Section 13(2) of the P.C Act. 3. In this context it has to be mentioned that accused No.2 has not preferred any appeal against the order of his conviction and sentence. 4. The accused in the above case were charge sheeted by the Deputy Superintendent of Police (Vigilance & Anti Corruption Bureau), SIU, Thiruvananthapuram, after obtaining sanction from the competent authority under Section 19(1) of the Act. 5. The prosecution case in brief was that accused No.1, Santhamma was working as Peon in the Public Works Department in the Government Secretariat during the period from February to April 1992. Accused No.2 Rajkumar was working as L.D. Clerk in the Government High School at Karikkakom in Thiruvananthapuram District during that Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 3 :: period. Similarly accused No.3 Muraleedharan Pillai was working as Security Guard in the Home Department and accused No.4 was working as Peon in the General Administration Department. Accused No.5 Kesava Pillai was working as a Peon in the Higher Education Department in the Government Secretariat. The prosecution alleged that the accused, who were public servants, along with one L.Peethambaran, (who was working as Section Officer in the Industries Department and who had expired in January, 1997) had entered into a criminal conspiracy to obtain illegal gratification from P.ws1 and 2 for procuring salary certificate (Non Liability Certificates) and also to stand as sureties for them to obtain loans from the Service Co-operative Bank at Peroorkada in Thiruvananthapuram. In pursuance of the said conspiracy accused No.2 and 3 had, during February-March 1993, demanded Rs.1,000/- and received Rs.100/- as advance towards preliminary expenses. Accused No.2 had received a further sum of Rs.500/- as part payment . Balance sum of Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 4 :: Rs.500/- was received by him on April 17, 1993. It was further alleged that the accused had obtained a total sum of Rs.2300/- from Pws.1 and 2 as illegal gratification. The accused had also committed offences under Sections 420, 468, 471 and 120-B by creating false Non Liability Certificate, intending to use them for the purpose of cheating the Bank. Reference will be made to the specific charges made against the accused later as and when the evidence is being discussed. 6. The prosecution had examined Pws.1 to 20 and marked Exts.P1 to P32 on its side. Dw.1 was examined on the side of the defence and Exts.D1 to D3 were marked. The learned Special Judge held that accused No.1 was guilty of the offences under Sections 120-B, 468, 471 and 420 IPC. and also under Section 13(1)(d) reads with Section 13(2) of the P.C. Act. She was accordingly convicted and sentenced to suffer Rigorous Imprisonment for a period of six months for the offence under Section 120-B and to suffer Rigorous Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 5 :: Imprisonment for a period of 1 year each for the offence under Sections. 468, 471 and 420 IPC. She was further sentenced to pay a fine of Rs.2,000/- and in default to undergo Simple Imprisonment for a period of 3 months for the offence under Section 468 IPC. For the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act, she was sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default of payment of fine she was directed to undergo Simple Imprisonment for 3 months. 7. Accused No.3 was convicted and sentenced to undergo Rigorous Imprisonment for 6 months for the offence under Section 120-B IPC and Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- for the offence under Section 420 IPC. Under Section 13(1)(d) he was directed to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo Simple Imprisonment for three months. Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 6 :: 8. Accused No.4 was sentenced to undergo Rigorous Imprisonment for 6 months for the offence under Section 120-B IPC and Rigorous Imprisonment for a period of 6 months and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo Simple Imprisonment for a a period of one month for the offence under Section 15 of the P.C. Act. 9. Accused No.5 was sentenced to undergo Rigorous Imprisonment for a period of 6 months under Section 120-B IPC and to undergo Rigorous Imprisonment for a period of one year each for the offence under Section 468, 472 and 420 IPC and to pay a fine of Rs.2,000- each for the offence under Section 468 and 420 IPC and in default of payment of fine to undergo Simple Imprisonment for a period of 3 months each and to suffer Rigorous Imprisonment for a period of 6 months and to pay a fine of Rs.1000/- and in default of payment of fine to undergo Simple Imprisonment for a period of one month. 10. Heard learned counsel for the appellants and the Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 7 :: learned Public Prosecutor. 11. It is contended by the learned counsel that the court below had totally misread and misconstrued the oral and documentary evidence on record. Appellants have been convicted on the basis of conjectures and surmises rather than on any material or cogent evidence. Not only the prosecution had failed to establish that the accused persons were privy to any criminal conspiracy as alleged by it, there was hardly any evidence at all to establish the charges under the P.C. Act. As regards the other offences punishable under the Indian Penal Code also the prosecution had miserably failed in proving that the accused had fabricated or forged any document in order to cheat either P.w.1 or P.w.2. 12. Per contra , it is contended by the learned Public Prosecutor that the evidence, if taken on the whole, would clinchingly show that the accused had, in furtherance of the conspiracy hatched by them, created and fabricated Non Liability Certificates with a view to use them as genuine Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 8 :: documents in order to enable Pws.1 and 2 to obtain loans from the Bank. Pws.1 and 2 had paid bribe as demanded by the accused and they had also stood as surety in the loan transaction using those forged certificates. Learned Public Prosecutor further submits that notwithstanding some minor discrepancies here and there, the prosecution had satisfactorily established the charges levelled against the appellants/accused. 13. As mentioned earlier, Pws.1 and 2 wanted to avail of loans from the Bank to the tune of Rs.10,000/- each. Pw.1 who was stated to be a Coolie, deposed before the court that he wanted to avail of the loan during March 1993. He was an A Class member in the Bank. He had approached accused Nos. 1 and 2 through Pw.3, who introduced them to him. Pw.1 along with Pw.3 had then met CW.4 (Sasikumar) who agreed that two Government employees could be arranged as sureties. Pw.1 and 3 along with CW.4 met accused Nos.1 and 3. By that time Pw.1 was informed that Non Liability Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 9 :: Certificate of accused No.3 had not been obtained. At that time accused No.2 was also introduced . Accused No.3 handed over 2 Non Liability Certificates that of his own and accused No.1. Accused No.3 demanded Rs.2,000/- as illegal gratification for arranging Non Liability Certificate. At that time accused No.3 demanded Rs.1,000/- and a sum of Rs.500/- was paid as advance. Pw.1 further deposed before the court that accused No.1 was also present along with accused No.3 at that time. Thereafter Pw.1 went to the Bank along with Pws.3, Cw.4 and accused Nos. 1 and 3. The certificate of accused No.1 was accepted, though that of accused No.3 was rejected. At that time accused No.3 promised that another certificate would be arranged. Thereafter the certificate of accused No.4 was arranged by accused No.3 which was handed over by accused No.4 himself. He had demanded Rs.500/- for the certificate which Pw.1 agreed to pay. An advance of Rs.400/- was paid by him. When accused No.4 went along with Pw.1 to stand surety for the loan, the Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 10 :: Secretary informed Pw.1 that the Non Liability Certificate of accused No.4 cannot be accepted since he had stood as surety for several other people. Pw.1 requested the Secretary for some time to produce another surety. At that time accused No.3 promised that another certificate would be arranged on the next day. When Pw.1 met accused No.3 he told Pw.1 that the Non Liability Certificate of Peethambaran would be arranged. At that time accused No.5 was also present. He demanded Rs.500/- for the certificate. He in fact gave a certificate to Pw.1 which was not accepted by the Bank. Later accused No.2 arranged another certificate. Accused No.2 had demanded Rs.1,000/- for the certificate which Pw.1 agreed to pay in 2 instalments. 14. Pw.2 in her deposition had stated that she had seen Pw.1 handing over Rs.500/- to accused No.2. She had also corroborated the version given by Pw.2. She also stated that Pw.3 was present at the Bank when accused Nos.1 and 2 had signed the documents as sureties. Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 11 :: 15. Pw.3 in his evidence had stated that he was present with Pw.1 and Cw.4 when accused No.2 had handed over a non Liability Certificate to Pw.1 on payment of Rs.500/-. They had gone to the Bank thereafter. Since accused No.2 had no membership, he was requested to take a C class membership. He further stated that he had accompanied Cw.4 and Pw.1 when they went to meet accused No.3 who promised that another certificate would be arranged if the certificate already obtained was not sufficient enough. The certificate of accused No.4 was not sufficient. He further stated that Pw.1 had gone to the Bank along with accused No.4 and the certificate of accused No.4 was not accepted since he had stood as surety on earlier occasions. 16. Learned counsel for the accused have taken me through the evidence of Pws.1 to 3 elaborately. It is true that there are material contradictions in the versions given by these 3 witnesses with regard to the demand for bribe made by them for procuring Non Liability Certificate and also for Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 12 :: standing as surety. The evidence of Pws.1 to 3 as regards the demand for and acceptance of bribe by accused Nos.1, 3 to 5 is not satisfactory at all. 17. Learned Public Prosecutor also fairly concedes that the evidence let in by the prosecution will not be sufficient enough to hold the appellants/accused guilty of the offences punishable under any of the provisions of the P.C. Act. Nevertheless, the court below had in the course of the discussion, jumped to the conclusion that the fact that the accused had produced some Non Liability Certificates before the Bank and offered themselves as sureties would be sufficient enough to show that the said act of the accused must have been as a consideration for having accepted some gratification from the accused. I am unable to agree with the above reasoning of the trial court. The learned Judge observed that accused Nos.1, 2 and 3 had abused their respective positions as public servants and forged certificates with an intention to cheat the Bank . The learned Judge held Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 13 :: that this mischief was done after receiving money from Pws. 1 and 2. As regards the case against accused Nos. 4 and 5, the trial court found that they were guilty of the offence under Section 15 of the Act, though they did not commit any offence under Section 13(1)(d) read with section 13(2). 18. Having carefully perused the materials available on record I am unable to agree with the finding entered by the trial court as regards the charge levelled against the petitioners under the provisions of the P.C. Act. 19. However there is considerable force in the contention raised by the learned Public Prosecutor that the prosecution had succeeded in establishing the charge against the accused under Sections 120B, 468, 471 and 420 IPC. 20. It is pertinent to note that the specific case of the prosecution is that the accused had assured PW1 and 2 that they would procure non liability certificates and act as sureties for the two loans to be availed of by PW1 and 2 from the Bank. Though I have found that the prosecution had not Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 14 :: succeeded in proving that there was a demand and acceptance of bribe by the accused, the evidence adduced by the prosecution will undoubtedly show that the accused had in fact managed to obtain non liability certificates as requested by PW1 and 2. It is also on record that all the accused had gone to the Bank along with PW1 and 2 with the certificates. 21. It is true that there is no case for the prosecution that accused No.3 had expressed his preparedness to stand as surety. But the specific case of the prosecution was that accused No.3 had played a prominent role in arranging the non liability certificates with the connivance of the other accused. The testimonies of PW1 to 3 will clearly reveal the role played by all the accused, particularly by accused 2 and 3 in procuring these certificates. It had also come out in evidence that the Bank had, for one reason or the other, refused to accept the suretyship of accused 4 and 5 and only the non liability certificates produced by accused Nos.1 and 2 Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 15 :: were accepted. They had also put their signatures in the relevant records as sureties. Ext.P17 is the loan application submitted by PW2 while Ext.P18 is the loan application of PW1. 22. It is not in dispute that accused Nos.1 and 2 had put their signatures in the agreement, bond and consent letter attached to the loan application forms. As rightly pointed out by the learned Public Prosecutor, accused No.1 had, in her 313 statement, admitted that the signatures found in the loan application and in the other connected documents were that of hers. As mentioned earlier, accused No.2 had never challenged the order of conviction and sentence passed against him so far. 23. The only other question will be whether there is sufficient material to rope in accused Nos.3 to 5. I have been taken through the other material witnesses, namely PW 4, 6, 11, 12 and 14. PW4 who had been working in the Cash Section of the General Administration Department in the Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 16 :: Secretariat during the relevant period, had been maintaining the Acquittance Roll pertaining to the non gazetted officers. Exts.P11 and P12, Acquittance Roll and inventory were marked through this witness. He had identified accused 4 and 5 in the court during the course of his examination. Similarly, he had also identified accused No.1 and stated that he was familiar with the signatures of these three accused. He further stated that accused No.1 had signed in Ext.P2 loan application as the second surety. He had also proved Ext.P9 (a), the surety bond of PW2. PW4 had also identified Ext.P9 (b), non liability certificate produced by accused No.1. He had asserted that the signature seen in the Ext.P9(a) was that of accused No.1. PW4 had further deposed before the court that it was seen from Ext.P9(a) that it was issued by Section Officer, Peethambaran (since deceased). Ext.P9(c), consent letter signed by accused No.1 was also proved through PW4. In his deposition, PW4 had further stated that Ext.P9(d) was the non liability certificate of accused No.5 in which the Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 17 :: photograph of the said accused had also been affixed. PW4 had also identified the signature of the two sureties/accused who had affixed their signatures in Exts.P6, P17 and P18, loan security bond and loan applications. The photocopies of Exts.P17 and 18 are also made available as Ext.P2 series. In short, the evidence of PW4 clinchingly established that the accused, more particularly accused No.1 along with accused No.5, had appeared before PW 8 and 9 at the Bank in connection with the loan transaction and affixed their signatures in the loan applications, bond, agreement, consent letter, etc. The authenticity or genuineness of the above documents had never been in dispute. More importantly, PW8 and 9, the Secretary and the Chief Accountant of the Bank respectively, had categorically stated before the court that all the accused at one stage or the other, had appeared before them in connection with the loan transaction. 24. As mentioned earlier, the Bank had ultimately accepted the surety ship of accused Nos.1 and 2 only. For Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 18 :: one reason or other, the others' offer for surety ship and the non liability certificates produced by them were not accepted. Thus, in my view the prosecution had succeeded in establishing the charge levelled against the petitioners under various offences under the Indian Penal Code. 25. In this connection, I may also refer to the evidence of PW6 who was working as the Assistant Security Officer at the relevant point of time in the Secretariat. He had specifically spoken about accused No.3 who was working under him. He had identified the signature of accused No.3 in Ext.P9(b) and (d). He had also stated that he was able to identify the handwriting of accused No.3 in Exts.P3 and P3(b) as well. He had also stated that all the accused were working in the Secretariat at the relevant point of time in different capacities. It is true that PW6 had admitted in his deposition that he was not certain as to whether the leave application allegedly submitted by PW3 was written by himself or by someone else. Learned counsel for accused No.3, placing Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 19 :: heavy reliance on this admission made by PW6, submits that in the absence of any expert evidence about the handwriting and signature, it was not safe to rely on the interested testimony of PW6 and hold that the handwritings found in Exts.P2 and P3 etc. referred to above, were that of accused No.3. But having perused the evidence of PW6, I am prepared to accept the version given by PW6. 26. PW12 had spoken about the salary details, recovery details etc. of accused No.1. Similarly, PW14 had spoken about the salary particulars of accused No.4. It is vehemently contended by learned counsel for the appellants/accused that the prosecution had totally failed in establishing the charge under Section 120-B, in the event of which only, all the accused could have been found guilty of the offences alleged under other counts as well. I am afraid the above contention is totally misconceived. 27. Having perused the material documents and having considered the oral testimony of the witnesses referred to Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 20 :: above, I have no hesitation to hold that all the five accused had entered into criminal conspiracy and procured the certificates as requested by PW1 and 2. It is true that the prosecution had not been able to pin point the specific roles played by each one of the accused in the entire transaction. But the evidence in the case, if read on the whole, will undoubtedly show that all the accused, at one stage or the other, had actively participated in the act of fabrication, forgery and cheating in furtherance of a criminal conspiracy. It is true that the prosecution had not established the charge under the provisions of the P.C. Act against the accused. But still as indicated earlier, it had come out on record that all the accused had appeared before the Bank in connection with the loan transaction with several non liability certificates, all of which were clearly manipulated. In that view of the matter, I am satisfied that the prosecution had succeeded in establishing that all the accused were guilty of the offences under Section 120-B IPC. Similarly, the evidence on record Crl.A.Nos.502, 539, 541 & 621 OF 2000 :: 21 :: clinchingly established that accused Nos.1 and 5 were guilty of the offences under Sections 468, 471 and 420 IPC. The evidence on record will show that the prosecution had succeeded in proving the charge under Sections 120-B and 420 IPC as well. Accused No.4 was also found guilty under Section 120B IPC. I do not find any illegality or irregularity in the above finding entered by the trial court. 28. Though the learned counsel for accused No.1 had challenged the sanction order issued by the competent authority on the ground that there was no proper application of mind, I am not prepared to accept the above contention. Having perused the order of sanction, I am of the view that there was proper application of mind. It had come out on record that accused 2 and 3 had been removed from service by the time charge sheet was laid. Therefore, the appellants are not entitled to succeed as regards the offences under the Indian Penal Code. 29. At this stage, learned counsel for the appellants Crl.A.Nos.502, 539,