D. Krishnamoorthy vs State by Special Police Establishment, C.B.I. Madras

Bhaskaran, J.—This revision is directed by the accused in C.C.No.2 of 1985, on the file of the Ninth Additional Special Judge, Madras,

against the framing of the following charges by the trial Court :-

FIRSTLY:- That you, during June 1984, being the public servant, to wit, Gang Maistry in Gang No.3, Arakonam Yard, Gang under Permanent

Way Inspector, Southern Railway, Arkonam demanded on 23.6.1984, at your residence, a sum of Rs.700/- from Thiru M.Dakhinamurthi son of

Narasimhan, Govindavadi, Kancheepuram Taluk, for preparing a forged Casual Labourer''s Service Card in his name and giving it to him for

gelling a job of a Gang-man from Southern Railway, Madras, and you asked the said Dakshnamurthi to hand over the said sum of Rs.700/- at

6.00 P.M. on 25.6.1984 at your residence and that you reiterated the same demand at about 6.30 P.M., on 25.6.1984 in your house at Arkonam

and accepted Rs.700/- as illegal gratification from the said Dakshnamurthi as a motive or reward for securing him a job by giving a forged casual

Labourer Service Card and thereby abused your official position as a public servant by corrupt or illegal means obtained pecuniary advantage for

yourself and thereby committed an offence punishable u/s 161 of the Indian Penal Code.

SECONDLY:-That you at the name time, place and in the course of the same transaction in your same official capacity as a public servant by

corrupt or illegal means or otherwise abusing position as public servant obtained for yourself Rs.700/- from the said Dhakinamurthi and that you

thereby committed an offence punishable u/s 5(I)(d) read with Section 5(2) of the Prevention of Corruption Act.

The revision is filed contending that no charge can be framed against the accused on the materials available and therefore, the proceedings are

liable to be quashed.

The facts lending to the framing of the afore-mentioned two charges against the petitioner are as follows:- One Dakshinamurthi gave a complaint

to the Superintendent of Police, C.B.I. Madras-6 on 25.6.1984 to the effect that he has studied upto S.S.1.C. and was without permanent

employment, that he came to know that one Krishnamurthi/accused/petitioner herein, who is employed as Gang Maistry in Arkonam, is securing

employment as Gang-man and approached him in his house at Arakonam on 25.6.1984 seeking his help to secure a job to which he replied that to

secure a job as Gangman, he must have worked as temporary Kalasi in the Madras Division and that he will prepare a forged Casual Labour

Service Card in the name of the complainant so that he can, with the help of the forged Casual Labour Service Card, register his name in the

Madras Division Office'' and could secure job as Gangman. For preparing bogus Casual Labour Service Card the complainant was asked to pay

the petitioner a sum of Rs.700/- The petitioner asked him to bring Rs.700/- to his house on 25.6.1984. Since he was not willing to pay bribe, he

has given the complaint.

On the basis of the complaint, the Inspector of Police C.B.I. Madras laid a trap in the presence of witnesses. The amount of Rs.700/- was paid

by the complainant to the petitioner and the police recovered the same in the presence of witnesses. After completing investigation, chargsheet was

laid against the petitioner, on the basis of which the aforementioned two charges were framed against the petitioner by the trial court. This revision

has been filed contending that on the basis of the complaint given by Dakshinamurthi and the statements recorded from the witnesses including the

complainant u/s 161 of the Code of Criminal Procedure, no offence u/s 161 of the Indian Penal Code nor u/s 5(l)(d) read with Section 5(2) of the

Prevention of Corruption Act is made out and therefore, the learned Special Judge has no jurisdiction to entertain the case and as such, the

impugned proceedings are liable to be quashed.

Learned counsel for the petitioner submitted that on the statements of witnesses what is made out is, that the petitioner, has demanded a sum of

Rs.700/- from the complainant as bribe for his issuing a forged Casual Labour Service Card, which can be used by the complainant to register his

name in the Southern Railway, Madras Division and secure job as a Gangman. He then submitted that issue of forged Casual Labour Service Card

can be done by anybody and not necessarily by a public servant and further, it is not the duty of the petitioner, as a Gang Maistry, to issue Casual

Labour Service Card and therefore, even if the prosecution case is accepted, what the petitioner has done is not an official or as a public servant

but only in his individual capacity and as such, it will not constitute an offence punishable u/s 161 of the Indian Penal Code or Section 5(l)(d) read

with Section 5(2) of the Prevention of Corruption Act and in order to constitute the aforesaid offence, the act alleged against an accused person

should be as a public servant. In the circumstances, no charge can be framed against the petitioner on the materials for the aforesaid offences and

the learned Special Judge cannot take cognizance of any offence like forgery independent of the two offences mentioned above falling u/s 6(a) of

the Criminal Law (Amendment) Act, though he can try for any other offence while trying for an offence falling u/s 6(a) of the Criminal Law

(Amendment) Act. The learned counsel for the petitioner cited the following decisions in support of his contention:- 1 Bhupesh Deb Gupta (Dead)

by Lrs. Vs. State of Tripura, 2) J.RamakrishnaRao v. State ( 1981 M.1.J. (Crl) 104) 3) Ram Dulare Yadav Vs. State of U.P. and Another, 4)

The The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, 5) the unreported decision of the Court

in S.S.TIiiagarajan v. State (W.P.No.179 of 1979 dated 25.2.1983): and 6) V.G.Bdlasubramanian v. State by Special Police Establishment

C.B.I. Madras ( 1988 L.W. (Crl) 400 ).

Learned Special Prosecutor appearing for the respondent submitted that it is admitted that the petitioner, who is a public servant, issued a

forged Casual Labour Service Card making the receiver of the certificate to believe that he can secure an employment with that certificate, by

receiving illegal consideration, it must be held that he committed the offence with which he is charged and it is not necessary that the act should be

in the discharge of his duties as a public servant. Therefore, the Special Judge can take cognizance of the offence. He also referred to the following

decisions:- 1) Shiv Raj Singh Vs. Delhi Administration, 2) Dhaneshwar Narain Saxena Vs. The Delhi Administration, and (3) the unreported

decision of this court in Jayaraman v. State by S.P.E. (Criminal Appeal No. 118 of 1982 dated 10.2.1986.

The first cited decision of the learned counsel for the petitioner Bhupesh Deb Gupta (Dead) by Lrs. Vs. State of Tripura, relates to the

conviction of a person u/s 161 of the Indian Penal Code for Receiving Rs.75/-from another. In the appeal against conviction, the Supreme Court,

while allowing the appeal, pointed out that before an accused can be held guilty of an offence u/s 161 of the Indian Penal Code the following

ingredients will have to be proved;

(1) The accused at the time of the offence was a public servant.

(2) That he accepted from some person a gratification.

(3) That such gratification was not legal remuneration due to him.

(4) That the accused accepted the gratification as a motive or reward for one of the following purposes;

a) doing or forbearing to do an official act;

b) showing or forbearing to show favour or disfavour to some one in the exercise of his official functions;

c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the

Legislature at any State, or with any Public Servant.

In that case, the Supreme Court found that the fourth ingredient has not been fulfilled. In the instant case also, according to the learned counsel for

the petitioner, the first three ingredients have been satisfied but the fourth ingredient is not made out, since the issue of Casual Labour Service Card

is not an official work of the petitioner.

In the second cited decision (1981 M.L J. Crl.104) an employee of Port Trust collected money from parties promising them to secure jobs in

other departments but failed to secure them jobs. In the appeal preferred by him against his conviction u/s 5(l)(d) read with Section 5(2) of the

Prevention of Corruption Act, the Andhra Pradesh High Court held that the accused could not secure jobs for those persons, as he was not

employed in the Departments where he has promised to secure jobs and as such, he was not in any manner abusing his position as a public servant

but he was acting only in his individual capacity and consequently set aside the conviction.

In the third cited decision Ram Dulare Yadav Vs. State of U.P. and Another, ) a police constable compelled a person to remain in police station

on a false case of theft and let him go after receiving money. On these facts, the Allahabad High Court held that the act does not attract Section

5(2) of the Prevention of Corruption Act, and being not in the discharge of his official duty but only attract ''extortion''.

In the fourth cited decision (1973 (2) S.C J. 211) the accused was a senior Lecturer in a Government College and he was appointed as

Examiner of the Gujarat University for conducting physics practical examination for the first year B.Sc. students. The allegation against him is that

he has received Rs.500/- as illegal gratification from one of the students appearing for the practical examination for showing favour and giving him

more marks than he deserved in the Physics Practical Examination. With that allegation he was charged u/s 5(l)(d) read with section 5(2) of the

Prevention of Corruption Act. While dismissing the appeal by the State against his acquittal for an offence u/s 5(l)(d) of the Prevention of

Corruption Act by the Gujarat High Court, the Supreme Court has held that though the accused in that case was a public servant as a Lecturer in a

Government College, he received illegal gratification not in that capacity but only as Examiner of university that anybody can be appointed as

University Examiner and not necessarily a Government servant and therefore, in his capacity as University Examiner, he cannot be considered to

hold an office under the Government and as such, he is not a public servant. Therefore, the Supreme Court held that it could not be said that there

has been any abuse by him of his positions as a public servant. Thus, the Supreme Court held that to constitute an offence u/s 5(1)(d) of the

Prevention of Corruption Act, the public servant who receives illegal gratification should do favour in his capacity as a public servant.

In the fifth decision cited by the learned Counsel for the petitioner (unreported decision of this court in W.P.No.179 of 1979 dated 25.2.1983)

the petitioner, who was a Union Engineer in the Highways and Rural Works Department, Vilathikulam, was charged u/s 5(l)(d) of the Prevention

of Corruption Act for having demanded and received illegal gratification of Rs.10/- from the complainant for recommending the grant of cement

permit to him and also recommended for the grant of cement permit. The Writ"" Petition was filed to quash the charge. It was held that in order to

sustain the charge, demand and acceptance should be by abusing his position as public servant. In that case, the petitioner, in his official capacity,

had no say to make recommendation for the grant of cement permit. Therefore, it was contended that for demanding illegal gratification by a public

servant for doing an act or favour to a person, from whom money is demanded, which he is not empowered to do as a public servant, he cannot

be held liable u/s 5(l)(d) of the Prevention of Corruption Act. That contention was accepted by the learned Judge following the aforesaid decision

of the Supreme Court reported in The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, and

consequently the Writ Petition was allowed.

In the last decision cited by the learned counsel for the petitioner ( 1988 L.W.(Crl.) 400 ) the accused, who was a Lower Division Clerk in the

Employees State Insurance Corruption (ESIC in short) was also the Secretary of the ESIC Employee Co-operative Thrift and Credit Society. He

was charged among others that he made false and fraudulent entries in the books of account of the society and misappropriated certain sum for

two years. He was charged u/s 5(l)(c) and (d) read with section 5(2) of the Prevention of Corruption Act and under Sections 120-B and 409 of

the Indian Penal Code. The trial judge found him not guilty u/s 5(l)(c) and (d) read with section 5(2) of the Prevention of Corruption Act and also

under Sectionsl20-B and 409 of the Indian Penal Code on the ground that he did not commit the offence in his capacity as a public servant viz.,

employee of the ESIC but only in his capacity as the Secretary of the Society, which was an honorary post, and therefore, tie cannot be charged

under the aforeaid sections. However, the trial Judge convicted him u/s 403 of the Indian Penal Code.

In the appeal against conviction u/s 403 of the Indian Penal Code, this Court, while upholding the finding of the learned trial Judge acquitting the

accused of the charges u/s 5(l)(c) and (d) read with Section 5(2) of the Prevention of Corruption Act and under Sections 120-B and 409 of the

Indian Penal Code on the ground that the alleged offence committed by the accused was only in his capacity as the Secretary of the Society and

not as a public servant viz., employees of the ESIC set aside his conviction u/s 403 of the Indian Penal Code also on the ground that the learned

Special Judge lacks jurisdictions to try the offence u/s 403 of the Indian Penal Code when once it is found that on the materials no offence is made

out for an offence u/s 5 (l)(c) and (d) of the Prevention of Corruption Act.

On the other hand, in the first decision relied on by the learned Special Prosecutor for the respondent (1969 (1) S.C.R.183) an unmarried

woman gave birth to a child. Her uncle and aunt made some arrangements for the child being brought up by some one who wanted to adopt the

child. The accused in that case, who was a police officer, threatened to take action against the uncle and aunt for having disposed of an illegitimate

child and demanded bribe for dropping action and accepted Rs.700/- He was convicted u/s 5(2) of the Prevention of Corruption Act and u/s 161

of the Indian Penal Code. The same was confirmed by the High Court. While confirming the conviction, the Supreme Court has held as follows: -

When a public servant is charged u/s 1611.P.C. and it is alleged that illegal gratification was taken by him for doing or procuring an official act, it is

not necessary for the court to consider whether or not the accused public servant was capable of doing or intended to do such an act... Therefore,

though the concealment of the birth of an illegitimate child is not an offence and the appellant could not have prosecuted any one, it could not be

said that the obtaining of money by the appellant for referring from an imaginary prosecution was not an offence u/s 161 I.P.C.

In the second cited decision (A.I.R. 1962 S.C. 195) the accused was an Upper Division Clerk in the office of the Chief Commissioner of

Delhi. One Ram Narain, who was the Chief Prosecution witness in the case, was a fireman serving in the Delhi Fire Brigade. He wanted to obtain

a licence for a double-barrelled shot-gun. He sought the assistance of the accused who had nothing to do with the issue of licence for firearms and

which is done by the office of the Deputy Commissioner, Delhi, The said Ram Narain had submitted two applications during the year 1953 for the

purpose of obtaining the aforesaid licence with the assistance of the accused. These applications did not produce any result. Therefore, during

1954 he made another attempt in the same direction and approached the accused. The accused held out hopes of success in obtaining the licence

if he was paid Rs.250/- Ram Narain paid only Rs.140/- and promised to pay the remaining amount later. He made another application declaring

his salary as Rs.105/- per month. In this application he was successful and necessary licence was granted. It was not disputed that the accused had

used his good office in expediting and furthering the progress of the application in the appropriate department. But, subsequently, after the licence

was granted, the authorities came to know that Ram Narain has falsely made a declaration in the form that his salary was Rs.105/- per month but

his actual salary was only Rs.85/- per month. Since under the rules, Government servants drawing less than Rs.100/-per month would not

ordinarily be considered for issue of licence, Ram Narain''s licence was cancelled and he was called upon to show cause why he should not be

prosecuted for having made a false statement. Against the proposed action, he represented to the authorities that he declared his salary falsely on

the advise of the accused. He again approached the accused to extricate himself. The accused again demand Rs.180/- as a reward for his getting

the licence restored. Ram Narain agreed to pay Rs.90/- as advance and promised to pay the balance after the licence is restored. However, he

reported the matter to his superior officers who in turn reported the police. A trap was laid and the accused was apprehended when the amount of

Rs.90/- was paid by Ram Narain. Charges were laid against the accused u/s 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act

alleging that he demanded and obtained Rs.90/- from Ram Narain that he being a public servant employed in the office of the Chief Commissioner,

Delhi, by corrupt and illegal means and by otherwise abusing his position as a public servant, obtained Rs.90/- from Ram Narain for the restoration

of his cancelled licence, which had been originally granted to him. The learned Special Judge came to the conclusion that the evidence produced by

the prosecution brought the charge home to the accused, and that the accused taking advantage of his own position as an employee in the Chief

Commissioner''s office and of Ram Narain''s ignorance and anxiety to get the licence and induced him to part with the money on the promise that

he will gel his licence restored. He also found that at the time of making this demand, the accused had not told Ram Narain that he wanted the

money for some one who was in a position to issue the licence and that, therefore, the case did not fall within section 161 of the Indian Penal Code

but on that reasoning, the learned Special Judge convicted the accused u/s 5(l)(d) of the Prevention of Corruption Act punishable u/s 5(2) of the

Act.

The accused preferred an appeal to the High Court against his conviction and the same was dismissed. Thereafter, he preferred an appeal to the

Supreme Court by way of Special Leave. A Full Bench of the Supreme Court consisting of Five Judges dismissed the appeal disagreeing with the

earlier view of the Supreme Court in the decision reported in The State of Ajmer (Now Rajasthan) Vs. Shivji Lal, in that in order to attract the

offence of Section 5(l)(d) of the Prevention of Corruption Act, it was a necessary element of the crime charged that the public servant should have

misconducted himself in the discharge of his own duty and that if the official favour promised by the public servant to the giver of the money was

not in the hands of the public servant, he could not be said to have misconducted himself in the discharge of his own duty. In that decision,

Dhaneshwar Narain Saxena Vs. The Delhi Administration, the Supreme Court, after extracting Section 5 of the Prevention of Corruption Act has

observed as follows:-

It will be observed that the heading of Section 5 is ''Criminal misconduct in the discharge of official duty''. That is a new offence which was created

by the Act, apart from and in addition to offences under the Indian Penal Code, like those under S.161 etc. The legislature advisedly widened the

scope of the crime by giving a very wide definition in Section 5 with a view to punish those who, holding public office and taking advantage of their

official position, obtain any valuable thing or pecuniary advantage. The necessary ingredient Of an offence u/s 161, Indian Penal Code, is the clause

''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 or any State

Government or Parliament or the Legislature of any State, or with any public servant''., but it need not be there in order to bring an offence u/s 5 of

the Act home to the accused. The offence under this section is, thus, wider and not narrower than the offence of bribery as defined in Section

161,1.P.C. The words ''in the discharge of his duty'' do not constitute an essential ingredient of the offence. The mistake in the judgment of this

Court in the aforesaid ruling in 1959 Supp.2 S.C.R.739 : The State of Ajmer (Now Rajasthan) Vs. Shivji Lal, has arisen from reading those words

which are part merely of the nomenclature of the offence created by the statute whose ingredients are set out in sub-clauses (a) to (d) that follow,

as descriptive of an essential and additional ingredient of each of the types of offence in the four sub-clauses. That that is the source of the mistake

is apparent from the erroneous way in which the section has been quoted at page 744 of the Supreme Court Report (at page 849 of A.I.R.) in the

paragraph proceeding the paragraph quoted above. The ingredients of the particular offence in clause (d) of section 5(1) of the Act are: (1) that he

should be a public servant; (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant; (3) that he

should have thereby obtained a valuable thing or pecuniary advantage; and (4) for himself or for any other person. In order to bring the charge

home to an accused person under clause (d) aforesaid of the section, it is not necessary that the public servant in question, while misconducting

himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconducted himself in the

discharge of his duty. ''Duty'' and ''misconduct'' go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be

in the discharge of his duty, but the reverse of it. That ''misconduct'', which has been made criminal by section 5 of the Act, does not contain the

element of discharge of his duty, by public servant, is also made clear by reference to the provisions of clause (c) of section 5(1). It is well settled

that if a public servant dishonestly or fraudulently misappropriates property entrusted to him, he cannot be said to have been doing so in the

discharge of his official duty (vide the case of AIR 1939 43 (Federal Court) An application for special leave to appeal from that decision was

refused by the Privy Council in AIR 1940 54 (Privy Council) This Court, therefore, misread the section when it observed that the offence consists

in criminal misconduct in the discharge of official duty. The error lies in importing the description of the offence into the definition portion of it. It is

not necessary to constitute the offence under clause (d) of the section that the public servant must do something in connection with his own duty

and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third

person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any

question of his misconducting himself in the discharge of his own duty, he has not committed an offence u/s 5(l)(d). It is also erroneous to hold that

the essence of an offence u/s 5(2) read with Section 5(l)(d) is that the public servant should do something in the discharge of his own duty and

thereby obtain a"" valuable thing or pecuniary advantage.

This decision, as stated above, differs from the conclusion arrived at by a Division Bench of the Supreme Court in the earlier decision (A.I.R.1959

S.C.847) when it observed that the words ''in the discharge of his duty as a public servant'' in Section 5 of the Prevention of Corruption Act do not

constitute any essential ingredient of the offence.

This very same decision has been considered by a Division Bench of the Supreme Court in a latter decision reported in The State of Gujarat v.

M.P.Dwivedi (1973 (2) S.C.J. 211) which has been cited earlier and stated by the learned counsel for the petitioner. In that decision, the Supreme

Court, after discussing the earlier decision reported in Dhaneshwar Narain Saxena Vs. The Delhi Administration, held that in the earlier decision

the question whether the words ''abusing his position as a public servant'' qualify the word ''otherwise'' or also the words ''corrupt or illegal means''

in Section 5(l)(d) was not discussed directly and that the observations made seem to indicate that the word ''otherwise'' refers to mean other than

corrupt or illegal by which a public servant may abuse his position.

In the unreported decision of this Court in Criminal Appeal No.118 of 1982 dated 10.2.1986, the last decision cited by the learned Special

Prosecutor for the respondent, an Upper Division Clerk working in the office of the Regional Divisional Stationary Depot, Shastri Bhavan,

Madras, was tried by Special Judge for offences u/s 161 of the Indian Penal Code and u/s 5(l)(d) read with Section 5(2) of the Prevention of

Corruption Act for having received a sum of Rs.25/- from P.W.I Rajendran to secure a passport so as to enable him to go to Gulf countries. The

fact was that the accused was not an employee in the Passport Office but was employed only in the Stationary Depot, which is in the same

premises wherein the Passport Office is also situate. The allegation against the accused is, that he received Rs.25/- from Rajendran, who came to

the Passport Office stating that he knew some person working in the Passport Office and as such, he could secure the Passport at the earliest

opportunity and in reward for the same, he received Rs.25/- The further allegation is, that he also threatened the said Rajendran that if he did not

pay Rs.25/- he will see to it that Rajendran did not get the passport. Though the trial court acquitted him of the charge u/s 161 of the Indian Penal

Code, it convicted him u/s 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act and in the appeal against the said conviction, an

argument was advanced that the accused was not working in the Passport Office and was not in a position to issue passport and since he belongs

to a different department, he has not abused his position as public servant while demanding and receiving Rs.25/- and therefore, he cannot be

convicted u/s 5(l)(d) of the Prevention of Corruption Act, relying on the decision reported in The State of Gujarat Vs. Manshankar Prabhashankar

Dwivedi and Vallabhdas Gordhandas Thakkar, (fourth decision cited by the learned counsel for the petitioner). This Court held, that though there

is force in the contention raised on behalf of the accused that the accused belonging to a different department, could not be stated to have accepted

Rs.25/- by abusing his position as a Government servant in the Passport Department, since there is evidence to show that he threatened the said

Rajendran that if he failed to give money he would see that he did not get his passport, that decision cited by the learned counsel for the accused

will not apply to the fact of this case. Therefore, this Court upheld the conviction taking into consideration that the accused induced the com-

plainant/P.W.1 to pay him Rs.25/- on the representation that he knew somebody in the Passport Department and that he will use his influence to

secure the Passport early and if the complainant failed to pay the amount as demanded, he will see to it that the complainant did not get the

passport.

Of the various decisions the two import-,-ant decisions which are apparently conflicting to each other, to be considered are Dhaneshwar

Narain Saxena Vs. The Delhi Administration, . Though the former decision seems to lay down that the discharge of duty as a public servant is not

an essential ingredient of the offence, the latter decision has considered the same and held that since the accused in that case who was a Lecturer in

a Government College and was also appointed as an Examiner by the Gujarat University, while receiving illegal gratification from a student for his

securing more marks than he deserved, has hot committed an offence u/s 5(l)(d) of the Prevention of Corruption Act, since the Examinership in

different from that of Lecturer in Government College, in which capacity only he is a public servant and not a Examiner of the University. Even in

the decision reported in Dhaneshwar Narain Saxena Vs. The Delhi Administration, (second decision cited by the learned Special Prosecutor for

the respondent), as slated earlier, the fact was even though the accused, as an employee in the Chief Commissioner''s office has nothing to do with

the Deputy Commissioner''s Office which issues the licence for gun, it has been found that he has used his influence in the Deputy Commissioner

Office to secure the licence.

Coming to the facts of this case as per the statements of witnesses the petitioner/accused was employed as Gang Maistry, and, he has nothing

to do with regard to the issue of Casual Labour Service Card nor did he promise that he will use his influence to secure a job by the use of such

forged Casual Labour Service Card. He only promised to prepare a forged Casual Labour Service Card and asked the complainant to register the

same with the Southern Railway, Madras Division, so that he can get a job as Gangman. What he did was only issuing a forged Casual Labour

Service Card and securing a job by registering the same with the Southern Railway, Madras Division is that of the complainant. Neither the

complaint given by the complainant nor his statement, nor even the statements of witnesses who were present at the time of payment show that the

petitioner promised to use his influence to secure a jobloi the complainant with the registration of the forged Casual Labour Service Card. Issuing

of forged Casual Labour Service Card, as rightly pointed out by the learned counsel for the petitioner, can be done by anybody and not

necessarily by a public servant. No doubt, as pointed out by the learned Special Prosecutor, since the petitioner was working as Gang Maistry, he

may be. aware of the procedures regarding the use of the temporary Casual Labour Service Card and how it has to be issued. But using his

knowledge by itself will not make him liable when it is submitted that he is not in the Department which issues Casual Labour Service Card. It is

also not in evidence that he promised to use his influence to secure a job for the complainant with the help of the forged Casual Labour Service

Card. On the evidence available on record, his duty ends by merely preparing and issuing a forged Casual Labour Service Card. Mere issue of

Forged Casual Labour Service Card will neither be an official act nor in his capacity as a public servant. In the circumstances, on the materials, the

petitioner cannot be charged for the offence u/s 161 of the Indian Penal Code or u/s 5(l)(d) read with Section 5(2) of the Prevention of Corruption

Act. Therefore, the impugned charges are liable to be quashed.

In the result, the Criminal Revision Case is allowed and the impugned charges are quashed.