K. Ramakrishnan vs Additional Legal Advisor Vigilance And Anti Corruption Bureau And Ors

The writ petitioner is Accused No.13 in the case C.C.No.32/2003 pending in the Court of the Enquiry Commissioner and Special Judge, Thrissur.

There are altogether 13 accused in the case. The offences alleged against them are punishable under Sections 13(1)(c) and 13(1) (d) read with

13(2) of the Prevention of Corruption Act, 1988 and also under Sections 409,471,477A and 120B of the Indian Penal Code.

Accused 1 to 11 were the office-bearers of the Indian Coffee Board Workers Co-operative Society Limited No.4227 (hereinafter referred to as

'the Society'). Accused No.12 is a contractor. Accused No.13, the petitioner herein, was the Managing Partner of the establishment by name M/s.

Enarc Consultants, Architects and Engineers.

The final report against the accused was filed in the Special Court by the Dy.S.P, Vigilance and Anti-Corruption Bureau (VACB), Thrissur. The

charge against the accused, as stated in the final report, is that Accused 1 to 11 hatched a criminal conspiracy during the period 1996-1998 with

Accused Nos. 12 and 13 and pursuant to such conspiracy, entrusted the construction work of the new restaurant building of the Society and the

renovation work of the existing restaurant building of the Society to Accused Nos.12 and 13 and that Accused 1 to 11, by abusing their position as

public servants, caused to get undue pecuniar advantage to Accused Nos.12 and 13 by paying them higher rates and higher fees and thereby caused

wrongful loss of Rs.6,48,213/- to the Society.

The petitioner filed an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') in the trial court.

Learned Special Judge considered the aforesaid application along with the applications for discharge filed by the other accused persons. After

considering the rival contentions of the parties, as per Ext.P2 order, learned Special Judge dismissed the application for discharge filed by the

petitioner.

Accused No.13 has filed this writ petition, praying that Ext.P2 order may be set aside and the application for discharge filed by him in the trial court

may be allowed.

Heard the learned counsel for the petitioner and also the learned Public Prosecutor.

The petitioner has preferred to file a writ petition to challenge the order of the trial court dismissing the application for discharge filed by him. The

writ petition contains a prayer for allowing the application for discharge filed by him in the trial court. Even then, the petitioner has not chosen to

produce in the writ petition a copy of the discharge application.

The only contention raised by the learned counsel for the petitioner before this Court is that the Society is not one registered under the Kerala Co-

operative Societies Act and Accused 1 to 11 are not public servants who come under the purview of Clause (ix) of Section 2(c) of the Prevention of

Corruption Act and therefore, the offences alleged against the petitioner in relation to the acts allegedly committed by Accused 1 to 11 will not stand

against him.

Learned counsel for the petitioner has elaborated the aforesaid contention by submitting that the Society is not receiving and it has not received

any financial aid from the Central Government or the State Government or from any corporation established by or under a Central, Provincial or State

Act, or any authority or body owned or controlled or aided by the Government. It is contended that the office-bearers of such a society will not come

under the definition of 'public servant' given in Clause (ix) of Section 2(c) of the Prevention of Corruption Act. Learned counsel has placed heavy

reliance upon the decision of this Court in India Coffee Board Workers Co-operative Society Limited v. State of Kerala (ILR 2017 (3) Ker 480) in

support of his contention.

Per contra, learned Public Prosecutor has pointed out that the decision referred to above was rendered by this Court in the context of Section 32

of the Kerala Co-operative Societies Act and it is not relevant for the purpose of deciding whether the office-bearers of the Society would come

under the purview of the definition of 'public servant' under Section 2(c)(ix) of the Prevention of Corruption Act, 1988. Learned Public Prosecutor has

contended that the question whether the Society has received any financial aid from the Government is a matter to be dealt with during the course of

the trial of the case. Learned Public Prosecutor has relied upon the decision of the Apex Court in State of Maharashtra v. Brijlal Sadasukh Modani

(AIR 2016 SC 1377) in support of his contention.

Section 2(c) of the Prevention of Corruption Act, 1988 defines 'public servant'. Clause (ix) of Section 2(c) of the Act reads as follows:

“(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or

banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or

under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as

defined in Section 617 of the Companies Act, 1956 (1 of 1956)â€​.

On a perusal of the above provision, it is manifest that a registered co-operative society must have received financial aid from the Central

Government or the State Government or any other institution mentioned therein so as to treat any office-bearer of it a 'public servant' under the

purview of the Prevention of Corruption Act, 1988.

The Society was initially registered as a Co-operative Society under the provisions of the Travancore-Cochin Literary, Scientific and Charitable

Societies Registration Act, 1955. When the Kerala Co-operative Societies Act, 1969 came into force, the Society became statutorily reckoned as a

deemed Co-operative Society under the provisions of that Act. The Society is an Industrial Co-operative Society which is under the administrative

control of the Industries and Commerce Department of the Government of Kerala. These facts cannot be disputed in the light of the decision of this

Court in India Coffee Board (supra) which has been referred to by the learned counsel for the petitioner.

The decision in India Coffee Board (supra) has been relied upon by the learned counsel for the petitioner to contend that the Society has not

received any financial aid from the State Government or any of the authorities mentioned under Section 2(c) (ix) of the Prevention of Corruption Act,

1988.

The decision in India Coffee Board (supra) was rendered in the context of Section 32 of the Kerala Co-operative Societies Act, 1969 which

provides for supersession of the Managing Committee of a society registered under that Act. The third proviso to Section 32 of the Kerala Co-

operative Societies Act, 1969, as it stood at that time, prohibited supersession of the Managing Committee of a society by the Registrar when there

was no Government shareholding or loan or financial assistance or any guarantee by the Government or any board of institutions constituted by the

Government in the society. In India Coffee Board (supra), this Court negatived the contention of the State that the Society had received financial aid

and assistance as contemplated under the third proviso to Section 32 of the Co- operative Societies act.

The decision in India Coffee Board (supra) was rendered by this Court on the basis of the pleadings and the records produced by the parties in

that case, that too, in the context of the proviso to Section 32 of the Kerala Co-operative Societies Act, 1969. This decision cannot be an authority to

find that the Society has not received any financial aid from the State Government. This decision can be an authority only to find that the Society has

not received any loan or financial assistance from the State Government as contemplated in the third proviso to Section 32 of the Kerala Co-operative

Societies Act, 1969. The decision in India Coffee Board (supra) cannot be accepted as an authority to interpret the expression ''any financial aidâ€

occurring in Clause (ix) of Section 2(c) of the Prevention of Corruption Act, 1988.

In construing the definition of 'public servant' in Clause (c) of Section 2 of the Prevention of Corruption Act, 1988, the court is required to adopt a

purposive approach as would give effect to the intention of 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 construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a

wide construction (See Govt. of A.P. v. P. Venku Reddy : AIR 2002 SC 3346).

In Manish Trivedi v. State of Rajasthan : AIR 2014 SC 648, it has been held as follows:

“The present Act envisages widening of the scope of the definition of the expression ‘public servant’. It was brought in force to purify public

administration. The legislature has used a comprehensive definition of ‘public servant’ to achieve the purpose of punishing and curbing

corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be

against the spirit of the statute.â€​

In State of Gujarat v. Mansukhbhai Kanjibhai Shah: 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 thereunderâ€​.

In Brijlal (supra), dealing with the provision contained in Section 2(c)(ix) of the Prevention of Corruption Act, 1988, 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 corruptionâ€​.

The Apex Court has 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 notâ€​. (emphasis supplied)

In the light of the decision of the Apex Court in Brijlal (supra), the contention of the learned counsel for the petitioner that the Society has not

received financial aid from the State Government and therefore, the office-bearers of the Society do not come within the purview of the definition of

public servant under Section 2(c)(ix) of the Prevention of Corruption Act, 1988 cannot be gone into in detail at this stage. It is a matter to be dealt with

in the course of the trial of the case.

Learned counsel for the writ petitioner has not raised any other contention before this Court in challenging Ext.P2 order passed by the trial court.

The discussion above leads to the conclusion that the question, whether the Society has received any financial aid from the Government and for

that reason whether Accused 1 to 11, the office-bearers of the Society, are public servants or not, is to be dealt with during the course of the trial of

the case. The petitioner would be at liberty to raise all his contentions in this regard at the appropriate stage of the trial of the case.

Consequently, the writ petition fails and it is dismissed. Interlocutory applications, if any, pending are closed. Interim order of stay passed in the

writ petition stands vacated.