Narayanankutty, U. vs State of Kerala

P.S. Gopinathan, J.—The Appellant was found guilty by the Enquiry Commissioner and Special Judge, Thrissur, in C.C. No. 22/01 on his file for offence u/s 7 of the Prevention of Corruption Act (for short, hereinafter referred to as ''P.C Act), and sentenced to rigorous imprisonment for six months. Assailing the above conviction and sentence this appeal was preferred.

P.W. 10, 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 P.C. Act and also for offences under Sections 409, 419, 468, 471 and 109 I.P.C. It v/as alleged that the Appellant was working as a Higher Grade Peon in Mullassery Block Panchayath Office during the period from 22-5-1997 to 2-1-1998 and in that capacity, he is a public servant coming u/s 2(c) of the P.C. Act. P.W. 3 was a film operator in a Cinema Theater at Thrissur. In 1994, he subscribed a Kuri run by Popular Kuries Limited of which P.W. 2 was the Manager. The Kuri was prized in favour of P.W. 3. Rs. 20,000 was the Kuri amount. Rs. 5,000 was handed over to P.W. 3 in cash and the balance Rs. 15,000 was invested in fixed deposit. To release that amount P.W. 3 had to furnish sureties. While searching for sureties, P.W. 4, a goldsmith informed P.W. 3 that the Appellant and P.W. 5 had stood as sureties for a Kuri subscribed by P.W. 4 for which the Appellant had demanded and accepted Rs. 500. P.W. 4 introduced the Appellant to P.W. 3. Appellant offered to issue salary certificate and arrange sureties for P.W. 3. The Appellant demanded Rs. 800. The Appellant thereupon handed over Ext.P-4 salary certificate in respect of P.W. 5 and Ext.P-5 salary certificate in respect of the Appellant for which the Appellant had demanded and accepted Rs. 800 as gratification other than legal remuneration from P.W. 3. P.W. 3 produced Exts. P-4 and P-5 before P.W. 2 and sought for releasing the money. Ext.P-7 bond was executed by P.W. 3 along with the Appellant and other surety. While executing Ext.P-7 bond, P.W. 2 noticed that the signature of the other surety put in Ext.P-7 does not tally with the specimen signature of the surety contained in Ext.P-4. Therefore, P.W. 3 was asked to produce another salary certificate with signature similar to that in Ext.P-7 bond. P.W. 3 approached the Appellant. He then gave Ext.P-6 salary certificate which was handed over to P.W. 2. Having smelt rat, P.W. 2 wrote Ext.P-8 letter to P.W. 6, the Secretary of Mullassery Block Panchayath to ascertain whether Exts. P-4 to P6 were issued from the office. P.W. 6 didn''t respond. Therefore, P.W. 2 made an enquiry over phone to which P.W. 6, after verifying the records, informed that no such certificate was issued from that office.

P.W. 7 subscribed a Kuri run by West Fort Kuries and Loans Pvt. Ltd., Thrissur. He also bid the kuri and was prized 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. P-11 to P-13 were issued. One in the name of the Appellant, and another one in the name of P.W. 5. P.W. 8, the Manager of West Fort Kuries and Loans, on enquiry understood that Exts. P-11 to P-13 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 P.W. 10. A part of the investigation was conducted by P.W. 9. P.W. 10, 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 P.Ws. 3 and 7 as if genuine documents and abetted P.Ws. 3 and 7 to use the forged documents as genuine and to 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.

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, P.Ws. 1 to 10 were examined and Exts. P-1 to P-25 were marked. During the course of the cross-examination of P.Ws. 4, 5 and 7, certain portions of CD statements were marked as Exts. D-1, D-2, D-3 and D-3(a). After closing the evidence for the prosecution, the Appellant was questioned u/s 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. P-11 to P-13 were given by the Appellant to P.W. 7 or that he had received any gratification other than legal remuneration for issuing Exts. P-11 to P-13. On the same time, it was found that Exts. P-4, P-5 and P-6 were issued to P.W. 3 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 u/s 7 of the Rs. P.C. Act was established. Consequently, the Appellant was convicted and sentenced as above.

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 P.W. 5, the Junior Superintendent employed in Mullassery Block Panchayath Office would show that the Appellant was working as a Peon in that office. P.W. 6, 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 P.Ws. 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 u/s 2(c) of the PC Act.

P.W. I, the Director of Panchayats would depose that 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.P-1 is the order. That evidence of P.W. I was also not assailed. There is no reason to disbelieve P.W. I or to reject Ext.P-1. Therefore, I find that the trial court had correctly given reliance to the evidence of P.W. I and Ext.P-1 and rightly come to a conclusion that the Appellant was prosecuted with due sanction.

P.W. 2 had deposed that he was the Manager of Popular Kuries Ltd. and that P.W. 3 had subscribed a kuri and that was prized in his favour and that Ext. P-2 is the subscriber''s personal register and that Ext. P-2 (a) is an entry regarding the Kuri subscribed by P.W. 3. 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, P.W. 3 filed Ext. P-3 application accompanied by two salary certificates, one that of K. Chandran (P.W. 5), 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. P-4 and P-5 are the salary certificates and that P.W. 3 and sureties reached the office and executed Ext. P-7 bond. While executing Ext.P-7 bond when the signature was compared, it was found that the signature of Chandran did not tally with the specimen signature contained in Ext.P-4. Therefore, P.W. 3 was asked to produce another certificate responding to which Ext.P-6 was produced. Since it was found that both Exts. P-4 and P-6 were issued from the same office, he sent Ext. P-8 letter to the Secretary of the Block Panchayath Office, Mullasserry to confirm issuance of the salary certificates. Since there was no response to Ext.P-8, he made enquiry over phone and came to understand that Ext.P-4 to P-6 salary certificates were not issued from the office of P.W. 6.

P.W. 3 would depose that in 1994, he had subscribed a 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.P-3 application along with two salary certificates, Exts. P-4 and P-5 which were given to him by the Appellant. The Appellant was introduced to him by P.W. 4. The Appellant demanded money for issuing Exts. P-4 and P-5 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.P-4 and Ext.P-7. So, P.W. 3 was asked to produce another certificate containing similar signature. Thereupon, he again approached the Appellant who issued Ext.P-6 certificate.

P.W. 4 would depose that when P.W. 3, who was known to him was in search of two Government servants to stand as sureties in a Kuri bid by P.W. 3, the Appellant, who had issued salary certificates and stood as surety in the Kuri subscribed by P.W. 4, was introduced to P.W. 3. P.W. 4 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 P.W. 3 that Rs. 200 was paid to the Appellant by P.W. 3 on the first day. P.W. 3 later stated that the Appellant was further paid.

P.W. 5 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 P.W. 6, the Secretary and that for that purpose Ext.P-9 register was maintained in the office. He would further depose that he didn''t give any salary certificate to stand as surety for P.W. 3 end that Exts. P-4 to P-6 salary certificates were not issued from his office, though seal of the office and the designation seal of the Secretary are official seals. P.W. 5 had also deposed that the signatures contained in Exts. P-4 to P-6 as that of the Secretary are not that of P.W. 6. Exts. P-4 and P-6 appears to be relating to P.W. 5. P.W. 5 had denied the authorship of the specimen signatures in Exts. P-4 and P-6.

P.W. 6 would depose that during 1997-98 she was the Secretary of the Mullassery Block Panchayath and that Exts. P-4 to P-6 and P-ll to P-13 were not signed by her and that she had received Ext.P-8 letter from P.W. 8.

The evidence of P.Ws. 5 and 6 that Exts. P-4 to P-6 were not issued by P.W. 6 remains unimpeached. There is no suggestion in cross-examination that Exts. P-4 to P-6 were signed by P.W. 6. Exts. P-4 and P-6 appears to be salary certificates relating to P.W. 5. The evidence of P.W. 5 that he had not given his salary certificate to P.W. 3 also remains unimpeached. His evidence on that respect is convincing. Exts. P-4 and P-6 would contain specimen signatures of the employee. P.W. 5 had deposed mat the specimen signatures in Exts. P-4 and P-6 were not put by him. That evidence of P.W. 5 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. P-4 to P-6 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.

The evidence of P.W. 4 would show that P.W. 3 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 P.W. 4, the Appellant was introduced by P.W. 4 to P.W. 3. The evidence of P.W. 3 would show that the Appellant who was introduced by P.W. 3, offered to stand as surety and to issue the salary certificate. He had also offered to arrange another surety. Accordingly, Exts. P-4 and P-5 salary certificates were given to P.W. 3 by the Appellant for which the Appellant had demanded and accepted Rs. 800. The evidence of P.Ws. 2 and 3 would further show that for releasing the kuri amount P.W. 3 filed Ext.P-3 application accompanied by Exts. P-4 and P-5 salary certificates. Accordingly, Exts. P-7 bond was executed by P.W. 3 along with the sureties of which one was the Appellant. Since signature affixed by the other surety in Ext.P-7 bond varied from the signatures contained in Ext.P-4, P.W. 2 asked P.W. 3 to produce another salary certificate. Accordingly, P.W. 3 approached the Appellant. Thereupon, the Appellant issued Ext.P-6 certificate. The evidence of P.W. 3 that Exts. P-4 to P-6 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 P.W. 3 and came to a finding that Exts. P-4 to P-6 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 P.W. 3 was any legal gratification. Therefore, it can be safely concluded the Appellant demanded and accepted Rs. 800 from P.W. 3 for issuing the forged salary certificates.

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 u/s 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 P.Ws. 5 and 6 would show that it was for P.W. 6 to issue the certificate. There is no reason to disbelieve P.Ws. 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 P.W. 3 would show that Exts. P-4 to P-6 forged salary certificates were given to P.W. 3 as if salary certificates issued from the officer for producing the same to offer surety for the release of the Kuri amount. The evidence of P.W. 3 also would show that P.W. 3 along with the Appellant had gone to the office of the Kuri Company and executed Ext.P-7 bond. Another person pretending to be Chandran relating to whom Exts. P-4 and P-6 salary certificates were issued was also taken to the office of the Kuri Company and executed Ext.P-7 bond as if that person is P.W. 5. When P.W. 2 noticed that there is no similarity between the specimen signatures in Ext.P-4 and signature of the other surety in Ext.P-7 bond, P.W. 3 was asked to produce another salary certificate. Again P.W. 3 approached the Appellant. Then Appellant issued Ext.P-6 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. P-4 to P-6 certificates to P.W. 3 as if certificate issued by the competent authority for which the Appellant had demanded and accepted Rs. 800 from P.W. 3. The evidence of P.W. 3 would show that he approached 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. P-4 to P-6 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 u/s 7 of the PC Act. For a better appraisal, reading of Section 7 would be appropriate:

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 punishable with imprisonment which shall be not less than six months but which may extend 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 hi 5 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 rewarJ 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 authority competent to issue the salary certificate. The evidence of P.Ws. 3 and 4 would show that P.W. 3 was searching for Public Servant to stand as surety. P.W. 4 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. P-4 to P-6 and stood as surety as if he discharging official duties. It is for that he demanded and accepted Rs. 800 from P.W. 3. That conduct would attract offence u/s 7 read with Explanation (d). In the above circumstance, 1 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.

In the result, the appeal fails. Accordingly, appeal is dismissed. The lower court shall see the execution of the sentence and report compliance.

A reproduction from ILR (Kerala Series)