G.S.Jayamohan vs State Of Kerala

R. Narayana Pisharadi, J

The revision petition, Crl.R.P.No.1272/2019, is filed by the second accused and the revision petition, Crl.R.P.No.1342/2019, is filed by the sixth accused in the case C.C.No.19/2014 pending in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, challenging the order dated 11.10.2019 passed by that court, by which it dismissed the application for discharge filed by them under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code').

There are altogether six accused in the case. The offences alleged against them are punishable under Section 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409,465,468,471 and 120B of the Indian Penal Code.

Accused 1, 2 and 6 in the case were the General Secretary, Executive Committee Member and the Accounts Officer respectively of the Kerala State Council for Child Welfare (KSCCW) (hereinafter referred to as 'the Council'). Accused 3 to 5 are private persons.

The prosecution case against the accused, as stated in the charge-sheet filed by the Vigilance and Anti-Corruption Bureau (VACB) in the Special Court, is as follows:

"That Sunil.C.Kurian (A1) while holding the post of General Secretary of KSCCW as such a public servant connived with Prasannakumaran Nair, Executive Committee Member of KSCCW and the Chairman of Food Committee for the LLT Camp, Abhilash David, V.S.Mathew and L.R.Shine, all are Private Persons and C.S.Jayamohan, the then Accounts Officer of KSCCW as such a public servant, with the object of misappropriating the Council's fund while conducted the LLT Camp, entered into a criminal conspiracy and in furtherance of that conspiracy, Sunil.C.Kurian (A1) invited quotations for the supply of food for 5 days to LLT Camp, L.R.Shine (A5) pretended to be the Manager of a Fictitious Catering Unit 'Cafeteria', submitted the quotation in a forged letter pad of the said unit which was prepared by V.S.Mathew (A4), managed the supply order in favour of Cafeteria a non existed outdoor catering Unit. Then Abhilash David, the A3, opened a Current Account with Indian Bank, Thycadu Branch as the proprietor of 'Cafeteria, An Out door Catering Unit' in a different address. Thereafter A3 to A5 supplied food at the LLT Camp and as against the supply order claimed more money with the help of boosted up number of participants and more days than what was ordered vide the supply order, A2 knowingly recommended those false and boosted up claims and A1 granted those total claims of A3 to A5 and Accounts Officer without any verification and also without obtaining proper vouchers and keeping the records properly released the claimed amount which resulted an undue advantage of Rs.1,43,430/- to A3-A5 which is a correspondent loss to the KSCCW."

Accused 2 and 6 filed separate applications for discharge under Section 239 of the Code in the Special Court. The Special Court considered those applications, along with applications for discharge filed by other accused and passed a common order by dated 11.10.2019, by which it dismissed all the applications.

Accused 2 and 6 have filed these revision petitions challenging the aforesaid order passed by the Special Court.

Heard the learned counsel for the revision petitioners and also the learned Public Prosecutor.

The prosecution case against the accused is narrated with more clarity in the impugned order passed by the Special Court and it reads as follows:

"A1 Sunil.C.Kurien was the General Secretary of Kerala State Council for Child Welfare (hereinafter referred to as KSCCW) and A2 Prasannakumaran Nair was the Executive Committee Member of KSCCW. They connived with A3 to A5 who are private individuals with the object of misappropriating the Councils Fund and in furtherance of that conspiracy, A1 invited quotations for the supply of food for five days to the camp named 'Learn to Live Together' (LLT) held in May 2000. A5 pretending to be the Manager of a fictitious catering unit, 'Cafeteria' submitted the quotation in the forged letter pad which was prepared by A4, managed the supply order in favour of 'Cafeteria' a non-existed outdoor catering unit. A3 opened a current account with Indian Bank, Thycaud Branch as the Proprietor of "Cafeteria" an outdoor catering unit in a different address. Thereafter A3 to A5 supplied food at the LLT Camp for the children and as against the supply order, claimed more money with the help of boosted up number of participants and more days than what was ordered vide the supply order. A2 knowingly recommended the said false and boosted up claims and A1 granted the said total claims of A3 to A5. A6 the then Accounts Officer of KSCCW without any verification and without obtaining proper vouchers and records released the claimed amount. The act of the accused resulted an undue advantage of Rupees 1,43,430/- to A3 to A5 and caused loss of the said amount to KSCCW and thereby accused committed the aforesaid offences."

The Council is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It conducted a programme by name "Learn to Live Together (LLT)" at Thiruvananthapuram during the period from 09.05.2000 to 13.05.2000. The prosecution case is that the accused committed corrupt practices in relation to purchase and supply of food for the persons who participated in the camp.

The merits of the plea of discharge made by each of the two petitioners shall be now considered seperately.

Prasannakumaran Nair (A2)

The second accused had raised a plea in the application for discharge that he was not a public servant at the time of commission of the alleged offences. The impugned order passed by the Special Court shows that the aforesaid contention raised by the second accused in the application for discharge was not pressed into service at the time of hearing of the application. However, in the revision petition filed by the second accused, he has reiterated the aforesaid contention.

Admittedly, the second accused was the Executive Member of the Council at the time of commission of the offences alleged against him. Even in the revision petition filed by him, it is admitted that the Council is a charitable organization registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.

As per Section 2(c)(xii) of the Act, any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority is a public servant.

Clause (xii) of Section 2(c) of the Act shows that an office-bearer of any educational, scientific, social, cultural or other institution, in whatever manner established, would be a public servant, if such institution has received any financial assistance from the Central Government or the State Government or any local or other public authority.

It is stated in the revision petition filed by the second accused that the Council is an autonomous body and that the State Government has no administrative control or executive control over the Council and that it is not an instrumentality of State and therefore, the second accused is not a public servant.

The above plea is made ignoring the definition of public servant given in Section 2(c) of the Act. As noticed earlier, the manner of establishment of an institution is not material to decide whether an office-bearer of it is a public servant. Absence of administrative or executive control of the Government over the institution is also not material. As per clause (xii) of Section 2(c) of the Act, the crucial question is whether the institution is receiving or whether it has received any financial assistance from the State Government. In the revision petition filed by the second accused, it is stated in paragraph 4 that, as per Clause 10 of the byelaw of the Council, funds of the Council are derived from associations and individuals and also the grant from the Central and the State Government.

Section 2(b) of the Act defines "public duty" as a duty in discharge of which the State, the public or the community at large has an interest. The explanation to Section 2(b) of the Act provides that "State" includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956.

The definition of public duty in Section 2(b) of the PC Act is very wide. Discharge of duties in which the State, the public or the community at large has an interest has been brought within the ambit of the expression 'public duty'. Performance of such public duty by a person who is holding an office which requires or authorize him to perform such duty is the sine qua non of the definition of the public servant contained in Section 2(c) of the Act.

In construing the definition of 'public servant' in Clause (c) of Section 2 of the Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. When the legislature has used a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by a construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction (See Government of A.P v. P. Venku Reddy : AIR 2002 SC 3346 and Manish Trivedi v. State of Rajasthan : AIR 2014 SC 648).

In State of Gujarat v. Mansukhbhai Kanjibhai Shah : AIR 2020 SC 2203:  2020 SCC OnLine SC 412, the Apex Court has held as follows:

"On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of 'public servant' is provided thereunder. .... The purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties. ...... In order to appreciate the amplitude of the word "public servant", the relevance of the term "public duty" cannot be disregarded. ...... Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities".

In State of Maharashtra v. Brijlal Sadasukh Modani : AIR 2016 SC 1377, the Apex Court has held as follows:

"In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term 'aid' has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of 'public servant'. The concept in entirety has to be understood in the backdrop of corruption".

(emphasis supplied)

The Apex Court proceeded further and held as follows:

"Therefore, we are of the convinced opinion that it was entirely unnecessary on the part of the High Court to enter into elaborate deliberation to arrive at the conclusion that the respondent was not a public servant. Regard being had to the facts of the case, we think it would be apposite that it is left to be dealt with in the course of trial whether the society concerned has ever been granted any kind of aid or not".                                                                                                                                                                                                                                            (emphasis supplied)

In the light of the decision of the Apex Court in Brijlal (supra), the contention of the second accused that he was not a public servant cannot be gone into in detail at this stage. It is a matter to be dealt with and decided during the trial of the case. The question whether the Council had ever received or has been receiving any financial assistance from the Central Government or the State Government is purely a question of fact to be decided after trial. The stage of Section 239 of the Code is too premature to consider that question. If the prosecution is able to show that the Council had ever received any financial assistance or has been receiving any financial assistance, the second accused would come within the definition of 'public servant" within the meaning of Section 2(c) (xii) of the Act. Suffice it to state that, even as per the second accused, the Council receives grant from the State and the Central Governments. Therefore, the Council is an institution which receives financial assistance from the State and the Central Governments and the second accused is an office-bearer of that institution. Prima facie, he is a public servant as defined under Section 2(c) of the Act.

Now coming to the factual aspects of the case against the second accused, he was the Chairman of the Food Committee of the LLT camp. The documents produced by the prosecution, along with the charge-sheet, show that a cheque dated 03.05.2000 for Rs.75,000/- was given in favour of "Cafeteria, Pattom" and another cheque for Rs.1,04,700/- dated 18.05.2000 was issued in its favour. Of course, these cheques were not signed by the second accused but by the General Secretary and the Treasurer of the Council. But, the document produced by the prosecution, that is, the bill given by Cafeteria, claiming an amount of Rs.1,04,700/-from the Council, bears an endorsement made by the General Secretary and also the petitioner recommending payment of the amount.

Learned counsel for the petitioner (A2) contended that, the second accused had no role in sanctioning or disbursing the amount. If he had no role in such matters, under what circumstances he happened to make endorsement on the bill given by Cafeteria, recommending payment of such amount, is a matter of evidence. Prima facie, this document indicates the involvement of the second accused in the criminal conspiracy alleged by the prosecution.

Moreover, the prosecution has also produced documents to show that amount was paid for supply of food items on 07.05.2000 and 08.05.2000. The camp was conducted only from 09.05.2000 onwards. Even assuming that the participants of the camp from distant places had reached the camp on 08.05.2000 itself and food was given to them, it is a matter of evidence under what circumstances food was supplied at the camp, even on 07.05.2000, to 100 participants. It is to be noted that the second accused was the Chairman of the Food Committee. It cannot be found at this stage that it was without his knowledge or connivance that food items were supplied on 07.05.2000 itself and payment was made for supply of food on that day.

Section 13(1)(d) of the Act provides that, a public servant is said to commit the offence of criminal misconduct, if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

A perusal of Section 13(1)(d) of the Act makes it clear that, if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under that provision. The three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. Under Section 13(1)(d)(ii) of the Act, "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person, would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, if a public servant, while he holds office, obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct.

Learned counsel for the revision petitioner (A2) would contend that there is no allegation against the second accused that he had obtained any valuable thing or pecuniary advantage.

In order to attract the offence under Section 13(1)(d) of the Act, it is not necessary that the public servant shall himself obtain valuable thing or pecuniary advantage. Allowing any other person to obtain such thing or advantage by abusing his official position would be sufficient.

While considering the plea of discharge, the Court need not consider, whether on the basis of the materials on record, the accused is likely to be convicted or not. At the stage of framing the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. At the stage of framing the charge and/or considering the discharge application, a mini trial is not permissible. Defence on merits is not to be considered at the stage of framing the charge and/or at the stage of considering discharge application (See State of Rajasthan v. Ashok Kumar Kashyap : 2021 SCC OnLine SC 314).

In the aforesaid circumstances, I find that the Special Court has rightly found that there are sufficient materials produced by the prosecution to make out a prima facie case against the second accused. The Special Court has rightly dismissed the application for discharge filed by the second accused.

G.S.Jayamohan (A6)

Accused No.6 was the Accounts Officer of the Council. The case against him stands on an entirely different footing.

The specific allegation against Accused No.6 is that, he released the amount claimed by accused 3 to 5, without any verification and without obtaining proper vouchers and that he did not keep the records properly.

As noticed earlier, the cheques for Rs.75,000/- and Rs.1,04,700/- were signed by the General Secretary and the Treasurer of the Council.

The cash vouchers and bills produced by the prosecution would show that they bear the endorsement of the office-bearers of the Food Committee or the Council, recommending payment of the amount claimed by accused 3 to 5.

Even according to the prosecution, the second accused had recommended and the first accused had granted or sanctioned payment of amounts to accused 3 to 5. There is no allegation against Accused No.6 that he had given any cheque or that he paid any amount without any sanction or recommendation made by the office-bearers of the Council.

The prosecution has no case that, Accused No.6, in his capacity as the Accounts Officer, had sanctioned or made any recommendation for payment of any amount.

Copy of the minutes of the meeting of the Council held on 22.04.2000 (which is a document produced by the prosecution and which is attested by the signature of the Superintendent of Police, VACB) shows that decision had been taken by the Council that advance amounts required to meet the expenses in connection with the camp shall be obtained from the Accounts Office.

When the entire materials collected during investigation have been placed before the Court as part of the charge-sheet, at the time of framing charge, the court cannot ignore the documents which are in favour of the accused. An accused cannot be deprived of taking advantage of the materials placed on record by the prosecution (See State of M.P v. Sheetla Sahai: (2009) 8 SCC 617).

Learned Public Prosecutor has not pointed out what materials have been produced by the prosecution along with the charge-sheet, which would show that the sixth accused, the Accounts Officer, had illegally or unauthorisedly released any amount to accused 3 to 5.

Even if it is accepted that Accused No.6 failed to properly keep accounts relating to the amounts paid, such an act will not attract the offence under Section 13(1)(d) of the Act against him since there are records showing payment of all amounts to accused 3 to 5.

In the aforesaid circumstances, the Special Court erred in making a finding that there is a prima facie case against Accused No.6. The Special Court has erroneously dismissed the application for discharge filed by Accused No.6.

Consequently, the revision petition (Crl.R.P.No.1272/2019) filed by the second accused is dismissed. The revision petition (Crl.R.P.No.1342/2019) filed by the sixth accused is allowed. The impugned order passed by the Special Court, as far as it relates to the sixth accused, dismissing the application for discharge filed by the sixth accused, is set aside. The application for discharge filed by the sixth accused is allowed and he is discharged.