P.C. George vs State of Kerala

P. Ubaid, J.—1. The appellant herein was the Sub Treasury Officer, Iritty, in Kannur District, in October, 2001. He faced prosecution under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act (for short " the P.C Act) before the Enquiry Commissioner and Special Judge (Vigilance), Kohikode in C.C 42 of 2002 on a final report submitted by the Vigilance and Anti-Corruption Bureau (VACB), Kannur, after investigation, on a complaint filed against him by one Jayaprakash, who was a Field Officer in the Animal Husbandry Department. An amount of Rs. 1,50,000/- was sanctioned as N.R.A to the said Jayaprakash from his Provident Fund Account, and accordingly he submitted a bill before the Sub Treasury Officer for payment. It was objected on the ground that for any amount above Rs. 1 lakh, clearance from the Finance Department will have to be obtained. In view of such an objection, the said Jayaprakash obtained clearance from the Finance Department and submitted another bill for Rs. 1 lakh on 9.10.2011. Along with the bill, a copy of the clearance obtained from the Finance Department was also submitted by Jayaprakash. But the bill was objected by the Sub Treasury Officer on the ground that copy of clearance from the Finance Department will have to be obtained directly by post, or otherwise, and that the copy produced by the claimant without the seal of the office cannot be accepted to honour the bill. The bill was so objected on 9.10.2001 itself, and thereafter Jayaprakash met the accused on 11.10.2001 with request to sanction payment. On that day also, he could not obtain money. It is alleged that on 11.10.2001, the Sub Treasury Officer demanded an amount of Rs. 500/- as illegal gratification for honouring the N.R.A Bill, and told Jayaprakash that as and when the said amount is paid, the bill would be sanctioned. As Jayaprakash was not inclined to make payment of bribe, he approached the Vigilance and Anti-Corruption Bureau (VACB) with a complaint on 12.10.2001. On the said complaint, the VACB registered a crime and arranged a trap. The amount brought by Jayaprakash was treated with phenolphthalein, and after demonstrating the required phenolphthalein test to the complainant and the others, Jayaprakash was instructed by the Dy.S.P. (VACB) to approach the accused, and make payment. Accordingly, Jayaprakash met the accused at his office at about 12.10 p.m and made payment of the phenolphthalein tainted currency when the Sub Treasury Officer repeated the demand. On getting the prearranged signal, the vigilance team led by the Deputy Superintendent of Police reached there, seized the phenolphthalein tainted currency and arrested the accused on the spot. After investigation, final report was submitted in court by the VACB. This is the prosecution case.

The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 7 and 13 (2) read with Section 13 (1) (d) of the P.C Act. Thus he claimed to be tried. The prosecution examined nine witnesses including the complainant Jayaprakash and marked Exts. P1 to P23 documents. M.O 1 to M.O 5 properties including the tainted currency were also identified and marked during trial.

When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and submitted that a vicious and illegitimate trap was arranged by the VACB to trap him at the instance of the complainant for the reason that he had grudge against him, and that the phenolphthalein tainted currency was in fact put on the office table by the complainant. The accused did not adduce any oral evidence in defence, but Exts. D1 and D2 were marked on his side.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs. 3000/- each under Sections 7 and 13 (2) read with Section 13(1) (d) of the P.C Act by judgment dated 16.4.2008. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant is entitled for acquittal on factual as well as legal grounds. As regards the factual grounds, his submission was that the demand alleged in this case is really suspicious, and the alleged acceptance also stands not properly proved. The learned counsel also submitted that a vicious and illegitimate trap was in fact arranged by the vigilance at the instance of the complainant herein, just to trap the accused. As regards the legal grounds, the learned counsel submitted that the prosecution sanction in this case stands not proved properly by the person who granted the sanction, and that mere marking of the sanction by the Investigating Officer will not make it acceptable under the law. On the other hand, the learned Public Prosecutor submitted that there is clear evidence to prove the case on facts, and that a trap was arranged by the vigilance on a genuine complaint made by PW1. As regards the legal grounds argued by the defence, the learned Public Prosecutor did not submit anything justifying the prosecution.

Before going to the factual aspects, let me see whether the prosecution in this case is barred under Section 19 of the P.C Act as the defence would contend. Ext. P22 is the prosecution sanction issued by the Director of Treasuries under Section 19 of the P.C Act. The Director, who issued the sanction was cited as a witness by the prosecution, but the said Director was not examined as a witness to prove the sanction. Ext. P22 was only marked by the Investigating Officer examined as PW8. He does not know how the sanction was granted or on what consideration sanction was granted. This Court has recently settled the legal position, following the earlier decisions of this Court and the Hon''ble Supreme Court, that the prosecution sanction granted under Section 19 of the P.C Act will have to be proved by the person who issued the sanction, except in cases where such sanction can claim any sanctity or immunity under the law. Ext. P22 is not a sanction authenticated on behalf of any authority having special privilege. It is a sanction issued by the Director of Treasuries who cannot claim any special privilege under the law. The prosecution should have examined the Director to prove the Ext. P22 sanction. Very recently, this Court has also settled that the Investigating Officer is not competent to prove a sanction granted under Section 19 of the P.C Act. The prosecution does not have any explanation why the prosecution sanction was not properly proved by the authority who issued the sanction. In the light of the decisions recently made, settling the legal position, I find that the prosecution in this case is barred under Section 19 of the P.C Act, because Ext. P22 sanction which is not properly proved by the person who granted it, cannot be accepted as a legal or valid prosecution sanction.

Now let me see whether the prosecution has established the case beyond reasonable doubt under Section 7 or 13 (2) of the P.C Act. The whole issue is regarding sanctioning of a non-refundable advance from the complainant''s provident fund account without obtaining clearance orders from the Finance Department. Initially, an amount of Rs. 1,50,000/- was sanctioned as N.R.A to PW1, but his bill was objected by the Treasury on the ground that for any amount above Rs. 1 lakh, clearance from the Finance Department will have to be obtained. Accordingly, the complainant approached the Finance Department and obtained clearance for Rs. 1 lakh. In view of such clearance, the complainant again submitted a bill for Rs. 1 lakh before the Sub Treasury Officer on 9.10.2001. The defence would also admit that it was objected on the ground that copy of the clearance from the Finance Department was not directly received at the Treasury. The defence relies on the Ext. D1 circular which contains a direction that bills shall not be honoured by the Treasury without obtaining clearance from the Department by post or by despatch. Here, admittedly the accused objected the bill on 9.10.2001 and also on 11.10.2001 on the ground that copy of the clearance from the Finance Department was not obtained directly at the office. Ext. P10 is the copy directly received at the treasury from the Finance Department. This was received only on 15.10.2001, and on that day itself, the bill was sanctioned and the amount was received by the complainant. The bill was sanctioned on 15.10.2001 by the successor in office because the accused was arrested by the vigilance on 12.10.2001. These facts will probabilise and support the defence that the accused could not have honoured the bill on 9.10.2001 or on 11.10.2001 without obtaining copy of the clearance directly from the Finance Department. Ext. P3 is the copy produced by the complainant along with this bill on 9.10.2001. Of course, it is true that it carries the emblem at the top, but it does not contain any seal of the office.

Now the question is whether the allegation of demand made by the complainant is probable or acceptable in this case or whether it is suspicious. The complainant would admit in cross-examination that his bill was objected by the accused on the ground that clearance from the Department will have to be directly received at the Treasury. It has come out in evidence that clearance was received from the Department directly on 15.10.2001. The complainant says that on 11.10.2001, the accused demanded Rs. 500/-, and told him that as and when the amount is paid, he would sanction the bill. It is not known how it was possible for the Treasury Officer to honour the bill without receiving the clearance directly, once he objected the bill in writing, forming part of the records. It is here the case of the accused assumes importance, that a vicious trap was arranged just because he objected the bill on 9.10.2001 and on 11.10.2001.

There is yet another important aspect making the story of demand suspicious. In cross-examination, the complainant admitted that on 11.10.2001 something unpleasant had happened between him and the accused. His bill was objected on 9.10.2001 and 11.10.2001. He approached the Sub Treasury Officer on 11.10.2011 with the hope that he would get the money. When the Sub Treasury Officer objected the bill on that day also, the complainant felt disappointed, or the conduct of the accused infuriated him. This led to some exchange of words between him, and the Treasury Officer. Though exchange of words as such is not admitted by PW1, his answer given to a question put by the learned defence counsel shows that something unpleasant had happened between him and the Treasury Officer. If so it is really improbable and suspicious that the Sub Treasury Officer demanded Rs. 500/- on 11.10.2001. The conscience of this Court does not allow me to accept the case of the complainant that after some un-pleasant situation that arose in connection with the objection to the bill, the accused demanded Rs. 500/- or the complainant agreed to pay Rs. 500/-. In such a situation, I find that the story of demand is suspicious.

That the Treasury Officer objected the complainant''s bill on 9.10.2001 and 11.10.2001, is justifiable in view of the directions contained in the Ext. D1 circular that bills shall not be honoured without and before getting intimation directly from the Finance Department, either by post or by messenger. Objection was made in writing by the Sub Treasury Officer on 9.10.2001. The said written objection was seized by the vigilance along with the bill submitted by the complainant. When such a written objection is there, in view of the clear directions in the Ext. D1 circular, the Sub Treasury Officer could not have honoured the bill on 11.10.2001 without getting the intimation directly from the Finance Department. So also, in view of something unpleasant happened between the complainant and the Sub Treasury Officer, the Sub Treasury Officer would not have demanded Rs. 500/- on 11.10.2001. All these aspects make the story of demand told by the complainant really suspicious.

It is well settled that on the basis of recovery of tainted money alone, a public servant cannot be convicted under Section 7 or 13 (2) of the P.C Act. For such a conviction, the prosecution must unerringly and satisfactorily prove the essentials. Here, the first essential stands not properly proved. It is rather suspicious. To prove the other essential also, there is only the evidence of the complainant. I find that the evidence of the complainant proving acceptance cannot be accepted by the court without independent corroboration. In such a situation, the conviction made by the court below cannot be sustained. The benefit of the genuine suspicion as regards the story of demand will have to go to the accused necessarily. Even otherwise I find that the the conviction is liable to be set aside because the whole prosecution is barred under Section 19 of the P.C Act.

In the result, this appeal is allowed. The conviction and sentence against the appellant in C.C 42 of 2002 of the court below will stand set aside. The appellant herein is found not guilty of the offences under Sections 7 and 13 (2) read with 13 (1) (d) of the P.C Act, and he is acquitted of the said offence in appeal, under Section 386 (b) (i) of Cr.P.C. The bail bond, if any, executed by the appellant will stand discharged.