IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 CRL.A.No. 1677 of 2004(C) ------------------------- CC.22/2001 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT/ACCUSED(S): ---------------------------------------- U.NARAYANANKUTTY, S/O. KESAVAN NAIR, (FORMER PEON (H.G.), MULLASSERY BLOCK PANCHAYATH OFFICE) OORATH HOUSE, NELLAMKARA, NETTISSERY P.O., THRISSUR. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENT/COMPLAINANT(S): ------------------------------------------------- STATE OF KERALA, REP.BY DEPUTY SUPERINTENDENT OF POLICE, V.A.C.B., THRISSUR THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05 / 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL NO.1677 OF 2004 ORDER IN CRL.M.APPL. NO.11898 /2004 IN CRL.APPEAL NO.1677/ 2004 DISMISSED. SD/- 30.5.220011 P. S.GOPINATHAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. CRL.APPEAL NO.1677 OF 2004 APPENDIX APPELLANT ANNEXUERS: 1. CERTIFIED COPY OF THE JUDGMENT DATED 29.09.2004 IN C.C 22/2001 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR. 2. PETITION TO SUSPEND THE SENTENCE. TRUE COPY PA TO JUDGE 'CR' P.S.GOPINATHAN, J. ================== Crl.A.No.1677 OF 2004 ================== Dated this the 30th May, 2011. JUDGMENT The appellant was found guilty by the Enquiry Commissioner and Special Judge, Thrissur, in C.C.No.22/01 on his file for offence under Section 7 of the Prevention of Corruption Act (for short, hereinafter referred to as ‘PC’ Act), and sentenced to rigorous imprisonment for six months. Assailing the above conviction and sentence this appeal was preferred. 2. PW10, the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Thrissur prosecuted the appellant alleging offences under Sections 7, 13(2) r/w 13(1) (d) and Section 15 r/w 13(1)(d) of the PC Act and also for offences under Sections 409, 419, 468, 471 and 109 IPC. It was alleged that the appellant was working as a Higher Grade Peon in Mullassery Block Panchayath Office during Crl.A.No.1677 OF 2004 2 the period from 22.5.97 to 2.1.98 and in that capacity, he is a public servant coming under Section 2(c) of the PC Act. PW3 was a film operator in a Cinema Theater at Thrissur. In 1994, he subscribed a kuri run by Popular Kuries Limited of which PW2 was the Manager. The Kuri was prized in favour of PW3. Rs.20,000/- was the kuri amount. Rs.5,000/- was handed over to PW3 in cash and the balance Rs.15,000/- was invested in fixed deposit. To release that amount PW3 had to furnish sureties. While searching for sureties, PW4, a goldsmith informed PW3 that the appellant and PW5 had stood as sureties for a Kuri subscribed by PW4 for which the appellant had demanded and accepted Rs.500/-. PW4 introduced the appellant to PW3. Appellant offered to issue salary certificate and arrange sureties for PW3. The appellant demanded Rs.800/-. The appellant thereupon handed over Ext.P4 salary certificate in respect of PW5 and Ext.P5 salary certificate in respect of the appellant for which the appellant had demanded and accepted Rs.800/- as gratification other than legal remuneration from PW3. PW3 Crl.A.No.1677 OF 2004 3 produced Exts.P4 and P5 before PW2 and sought for releasing the money. Ext.P7 bond was executed by PW3 along with the appellant and other surety. While executing Ext.P7 bond, PW2 noticed that the signature of the other surety put in Ext.P7 does not tally with the specimen signature of the surety contained in Ext.P4. Therefore, PW3 was asked to produce another salary certificate with signature similar to that in Ext.P7 bond. PW3 approached the appellant. He then gave Ext.P6 salary certificate which was handed over to PW2. Having smelt rat, PW2 wrote Ext.P8 letter to PW6, the Secretary of Mullassery Block Panchayath to ascertain whether Ext.P4 to P6 were issued from the office. PW6 didn’t respond. Therefore, PW2 made an enquiry over phone to which PW6, after verifying the records, informed that no such certificate was issued from that office. 3. PW7 subscribed a Kuri run by West Fort Kuries and Loans Pvt.Ltd, Thrissur. He also bid the kuri and was prized Crl.A.No.1677 OF 2004 4 in his favour. To get the Kuri amount, he was asked to produce sureties. He approached the appellant through his friend one Thampi. The appellant offered to issue certificate and arrange sureties for which Rs.3,000/- was demanded and obtained Rs.1,500/- as advance. 3 salary certificates which were marked as Exts.P11 to P13 were issued. One in the name of the appellant, and another one in the name of PW5. PW8, the Manager of West Fort Kuries and Loans, on enquiry understood that Exts.P11 to P13 certificates were not issued by the Secretary of the Block Panchayath Office. The matter was reported to the vigilance and accordingly the case was registered. The investigation was taken over by PW10. A part of the investigation was conducted by PW9. PW10, after completing the investigation, filed the charge sheet against the appellant before the trial court alleging that the appellant had forged the salary certificates with intention to deceive and the forged documents were handed over to PW3 and 7 as if genuine documents and abetted PW3 and 7 to use the forged documents as genuine and to Crl.A.No.1677 OF 2004 5 get the kuri bonds executed and to release the kuri amount and that the appellant had demanded and accepted illegal gratification and that he had got undue pecuniary advantage by abusing the office and there by committed the earlier mentioned offences. 4. The learned Special Judge took cognizance and issued process responding to which the appellant entered appearance. Copies of the final report and connected documents were furnished to the appellant. After hearing either side, having satisfied that there are materials to send the appellant for trial, charge for the said offences was framed. When read over and explained, the appellant pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution, PWs. 1 to 10 were examined and Exts.P1 to P25 were marked. During the course of the cross examination of PWs.4, 5 and 7, certain portions of CD statements were marked as Exts.D1, D2, D3 and D3(a). After closing the evidence for the prosecution, the appellant Crl.A.No.1677 OF 2004 6 was questioned under Section 313 1(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence. He further stated that he didn’t issue/give any certificate to any person and that without finding out the real culprit, he was falsely implicated. No defence evidence was let in. On appraisal of the evidence, the learned Special Judge arrived at a finding that the prosecution had not succeeded to establish that the appellant had forged the salary certificates or that it was used as genuine by him or that he had committed any forgery or abetment or that he had personated for the purpose of cheating. It was also found that the prosecution had not succeeded to establish that Exts.P11 to P13 were given by the appellant to PW7 or that he had received any gratification other than legal remuneration for issuing Exts.P11 to P13. On the same time, it was found that Exts.P4, P5 and P6 were issued to PW3 by the appellant for which the appellant had demanded and accepted a sum of Rs.800/- as gratification other than legal remuneration. Therefore, an offence under Section 7 of the Crl.A.No.1677 OF 2004 7 PC Act was established. Consequently, the appellant was convicted and sentenced as above. 5. The fact that the appellant was working as a Higher Grade Peon in the Mullassery Block Panchayath Office is not assailed in this appeal. The evidence of PW5, the Junior Superintendent employed in Mullassery Block Panchayath office would show that the appellant was working as a Peon in that office. PW6, the then Secretary of the Mullassery Block Panchayath also would depose that the appellant was working as a Peon in her office. The above evidence of PWs.5 and 6 was not at all assailed. Their evidence would convincingly establish that as alleged by the prosecution the appellant was working as a Peon in the Block Panchayath Office at Mullassery. In this capacity, he would come within the definition of public servant under Section 2(c) of the PC Act. 6. PW1, the Director of Panchayats would depose that Crl.A.No.1677 OF 2004 8 he was the authority competent to remove the appellant from service and that after perusing the case records in this case, he had issued order according sanction to prosecute the appellant and that Ext.P1 is the order. That evidence of PW1 was also not assailed. There is no reason to disbelieve PW1 or to reject Ext.P1. Therefore, I find that the trial court had correctly given reliance to the evidence of PW1 and Ext.P1 and rightly come to a conclusion that the appellant was prosecuted with due sanction. 7. PW2 had deposed that he was the Manager of Popular Kuries Ltd. and that PW3 had subscribed a kuri and that was prized in his favour and that Ext.P2 is the subscriber's personal register and that Ext.P2 (a) is an entry regarding the Kuri subscribed by PW3. Rs.20,000/- was the prize amount, out of which Rs.5,000/- was paid in cash and balance Rs.15,000/- was invested in fixed deposit and that for releasing the fixed deposit, PW3 filed Ext.P3 application accompanied by two salary certificates, one that of Crl.A.No.1677 OF 2004 9 K.Chandran (PW5), Junior Superintendent in the office of the Block Panchayath Mullasserry and another that of U.Narayanankutty, (appellant) Higher Grade Peon in the same office and that Exts.P4 and P5 are the salary certificates and that PW3 and sureties reached the office and executed Ext.P7 bond. While executing Ext.P7 bond when the signature was compared, it was found that the signature of Chandran did not tally with the specimen signature contained in Ext.P4. Therefore, PW3 was asked to produce another certificate responding to which Ext.P6 was produced. Since it was found that both Exts.P4 and P6 were issued from the same office, he sent Ext. P8 letter to the Secretary of the Block Panchayath office, Mullasserry to confirm issuance of the salary certificates. Since there was no response to Ext.P8, he made enquiry over phone and came to understand that Ext.P4 to P6 salary certificates were not issued from the office of PW6. 8. PW3 would depose that in 1994, he had subscribed a Crl.A.No.1677 OF 2004 10 Kuri run by Popular Kuries and that Rs.20,000/- was due to him as prize amount, out of which Rs.5,000/- was received in cash. Balance Rs.15,000/- was invested in fixed deposit. To get that amount released he filed Ext.P3 application along with two salary certificates, Ext.P4 and P5 which were given to him by the appellant. The appellant was introduced to him by PW4. The appellant demanded money for issuing Exts.P4 and P5 and accordingly Rs.800/- was paid. The appellant was one of the sureties and another surety was Chandran. When the bond was executed the Manager stated that there was dissimilarity between the signatures of Chandran in Ext.P4 and Ext.P7. So, PW3 was asked to produce another certificate containing similar signature. Thereupon, he again approached the appellant who issued Ext.P6 certificate. 9. PW4 would depose that when PW3, who was known to him was in search of two Government servants to stand as sureties in a Kuri bid by PW3, the appellant, who had Crl.A.No.1677 OF 2004 11 issued salary certificates and stood as surety in the Kuri subscribed by PW4, was introduced to PW3. PW4 would further depose that since the surety Chandran was not willing to go over to the office of the Kuri company, one Sajeevan was arranged and that he heard from PW3 that Rs.200/- was paid to the appellant by PW3 on the first day. PW3 later stated that the appellant was further paid. 10. PW5 would depose that he was working as Junior Superintendent in Mullassery Block Panchayath during the year 1996-98 and that the salary certificates were being issued from his office by PW6, the Secretary and that for that purpose Ext.P9 register was maintained in the office. He would further depose that he didn't give any salary certificate to stand as surety for PW3 and that Ext.P4 to P6 salary certificates were not issued from his office, though seal of the office and the designation seal of the Secretary are official seals. PW5 had also deposed that the signatures contained in Exts.P4 to P6 as that of the Secretary are not Crl.A.No.1677 OF 2004 12 that of PW6. Exts.P4 and P6 appears to be relating to PW5. PW5 had denied the authorship of the specimen signatures in Exts.P4 and P6. 11. PW6 would depose that during 1997-98 she was the Secretary of the Mullassery Block Panchayath and that Exts.P4 to P6 and P11 to P13 were not signed by her and that she had received Ext.P8 letter from PW8. 12. The evidence of PWs. 5 and 6 that Exts.P4 to P6 were not issued by PW6 remains unimpeached. There is no suggestion in cross examination that Exts.P4 to P6 were signed by PW6. Exts.P4 and P6 appears to be salary certificates relating to PW5. The evidence of PW5 that he had not given his salary certificate to PW3 also remains unimpeached. His evidence on that respect is convincing. Exts.P4 and P6 would contain specimen signatures of the employee. PW5 had deposed that the specimen signatures in Exts.P4 and P6 were not put by him. That evidence of Crl.A.No.1677 OF 2004 13 PW5 also remains unimpeached. Special Judge, on appraisal of the evidence on record believed the above evidence. The finding of the Special Judge on that aspect is based upon cogent evidence and requires no interference. It goes without saying that Exts.P4 to P6 are forged documents. Therefore, I concur with the lower court on that aspect. But the appellant was found not guilty for forgery for failure of the prosecution to establish that the forgery was committed by the appellant. 13. The evidence of PW4 would show that PW3 was searching for two Government servants to stand as sureties for him to obtain the Kuri amount. Since the appellant had stood as surety to PW4, the appellant was introduced by PWs. 4 to PW3. The evidence of PW3 would show that the appellant who was introduced by PW3, offered to stand as surety and to issue the salary certificate. He had also offered to arrange another surety. Accordingly, Exts.P4 and P5 salary certificates were given to PW3 by the appellant for Crl.A.No.1677 OF 2004 14 which the appellant had demanded and accepted Rs.800/-. The evidence of PWs. 2 and 3 would further show that for releasing the kuri amount PW3 filed Ext.P3 application accompanied by Exts.P4 and P5 salary certificates. Accordingly, Exts.P7 bond was executed by PW3 along with the sureties of which one was the appellant. Since signature affixed by the other surety in Ext.P7 bond varied from the signatures contained in Ext.P4, PW2 asked PW3 to produce another salary certificate. Accordingly, PW3 approached the appellant. Thereupon, the appellant issued Ext.P6 certificate. The evidence of PW3 that Exts.P4 to P6 certificates were issued by the appellant could not be shaken in cross examination. On a critical reappraisal of the evidence, I find that the lower court had correctly relied upon the evidence of PW3 and came to a finding that Exts.P4 to P6 were issued by the appellant for which the appellant had demanded and accepted Rs.800/- as gratification. There is no case for the appellant that the sum of Rs.800/- he received from PW3 was any legal gratification. Therefore, it can be safely Crl.A.No.1677 OF 2004 15 concluded the appellant demanded and accepted Rs.800/- from PW3 for issuing the forged salary certificates. 14. The learned counsel for the appellant submitted that the salary certificates were not issued by the appellant as part of the discharge of the official duties. Therefore, according to the learned counsel no offence under Section 7 of the PC Act would be attracted. It is true that the appellant was working only as a Peon in the office of the Block Panchayath, Mullassery. The evidence of PWs.5 and 6 would show that it was for PW6 to issue the certificate. There is no reason to disbelieve PWs.5 and 6 on that aspect. Therefore, the evidence on record would show that the appellant was not the authority to issue salary certificate and he has no business to issue any salary certificate to any person. But the evidence of PW3 would show that Exts.P4 to P6 forged salary certificates were given to PW3 as if salary certificates issued from the officer for producing the same to offer surety for the release of the Kuri amount. The Crl.A.No.1677 OF 2004 16 evidence of PW3 also would show that PW3 along with the appellant had gone to the office of the Kuri company and executed Ext.P7 bond. Another person pretending to be Chandran relating to whom Exts.P4 and P6 salary certificates were issued was also taken to the office of the Kuri company and executed Ext.P7 bond as if that person is PW5. When PW2 noticed that there is no similarity between the specimen signatures in Ext.P4 and signature of the other surety in Ext.P7 bond, PW3 was asked to produce another salary certificate. Again PW3 approached the appellant. Then appellant issued Ext.P6 certificate as if it is another salary certificate issued from the office. Prosecution has no case that the appellant was the authority competent to issue the salary certificate or that he represented that the salary certificates were duly issued by the competent authority. But the appellant delivered Exts.P4 to P6 certificates to PW3 as if certificate issued by the competent authority for which the appellant had demanded and accepted Rs.800/- from PW3. The evidence of PW3 would show that he approached Crl.A.No.1677 OF 2004 17 the appellant for salary certificate as if the appellant was the authority competent to issue the salary certificate. Appellant pretended to be the authority to issue salary certificate and issued Exts.P4 to P6 for which money was demanded. The demand of money is under the colour of the office. In pursuance to demand, Rs.800/- was obtained. It can no way be a legal gratification, but a gratification other than legal which would come under Section 7 of the PC Act. For a better appraisal, reading of Section 7 would be appropriate:- “7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be publishable with imprisonment which shall be not less than six months but which may extend Crl.A.No.1677 OF 2004 18 to five years and shall also be liable to fine. Explanations.-(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for his service, the public servant has committed an offence under this section”. Going by Explanation (d) to Section 7 of the PC Act, I find that the said demand and acceptance would come within the purview of Section 7 even if the appellant was not the Crl.A.No.1677 OF 2004 19 authority competent to issue the salary certificate. The evidence of PW3 and 4 would show that PW3 was searching for Public Servant to stand as surety. PW4 introduced appellant as if a public servant who would issue salary certificate, stand as surety in the capacity as a public servant and could arrange other surety, though the appellant was not the authority to issue salary certificate or to stand as surety is not part of the discharge of official duties. The appellant issued Exts.P4 to P6 and stood as surety as if he discharging official duties. It is for that he demanded and accepted Rs.800/- from PW3. That conduct would attract offence under Section 7 read with Explanation (d). In the above circumstance, I find that the learned Special Judge had correctly appraised the evidence and rightly arrived at a finding of guilt against the appellant. The conviction under challenge is based upon cogent evidence and requires no interference. The sentence impugned is nothing but the statutory minimum. There is no reason to deviate from the minimum sentence. Crl.A.No.1677 OF 2004 20 In the result, the appeal fails. Accordingly, appeal is dismissed. The lower court shall see the execution of the sentence and report compliance. P.S.GOPINATHAN, JUDGE. mns