Viswanathan. K vs State Of Kerala And Ors

The petitioner is the second accused in the case C.C.No.11/2020 pending in the Court of the Enquiry Commissioner and Special Judge, Kozhikode.

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

with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Section 511 of 467 of the Indian Penal Code.

On 23.08.2014, the Dy.S.P, Vigilance and Anti-Corruption Bureau (VACB), Malappuram conducted a surprise check in the office of the Joint

Regional Transport Officer, Tirur and recovered unlaminated driving licences, 15 blank registration certificates and two security holograms from

private persons who were said to be motor vehicles agents. A register containing secret codes and the names of various motor driving schools and

individuals was seen kept in the office. Alleging that the officials of the R.T.O office fraudulently and dishonestly allowed the motor vehicle agents to

handle and possess unlaminated driving licences, blank registration certificates and security holograms and they committed misconduct, a case was

registered as V.C.No.6/2015 on 28.01.2015.

After completing the investigation of the case, VACB has filed final report against seven accused persons for the offences mentioned earlier. The

learned Special Judge has taken cognizance of the offences.

As per Annexure-A2 chargesheet, the prosecution case against the accused is as follows: The first accused was the Office Attendant and the

second and the third accused were the Clerks in the Sub Regional Transport Office, Tirur. As public servants, they committed criminal misconduct by

dishonestly and fraudulently allowing the accused Musthafa and Bhaskaran (A4 and A6) to handle and possess non-laminated driving licence and

security holograms which were under their control, for the purpose of committing forgery. The accused Jalaludheen (A7), who was a Clerk in the Sub

Regional Transport Office, Thirurangadi committed criminal misconduct by dishonestly and fraudulently allowing the accused Hamsa (A5) to handle

and possess blank registration certificates which were under his control, for the purpose of committing forgery.

This application is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing Annexure-A1 F.I.R and Annexure-A2 final report

filed against the petitioner.

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

There is no allegation in the final report that the petitioner has committed an offence punishable under Section 511 of 467 I.P.C. Such an offence is

alleged only against accused 4 to 6. The offence alleged against the petitioner is under Section 13(1)(d) read with 13(2) of the Act. It is pertinent here

to note that no offence of criminal conspiracy punishable under Section 120B I.P.C is alleged against the accused.

Section 13(1)(d) of the Act (as unamended) 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.

Insofar as Section 13(1)(d) of the Act is concerned, its essential ingredients are: (i) that the accused should have been a public servant; (ii) that he

should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing

or pecuniary advantage for himself or for any other person.

In the instant case, there is no allegation that the petitioner has obtained for himself or for any other person any pecuniary advantage.

The allegation against the petitioner is that he fraudulently and dishonestly allowed the accused Musthafa and Bhaskaran to handle and possess

non-laminated driving licence and two security holograms which were under his control.

Assuming that the non-laminated driving licence and security holograms are valuable things, the question arises whether the petitioner had used

any corrupt or illegal means or whether he had abused his position as a public servant, to allow the accused Musthafa and Bhaskaran to handle and

possess the aforesaid documents.

As regards the non-laminated driving licence, it is not specifically stated in the final report, who among accused 1 to 3 was in the custody or

control of that document. The statement filed by the investigating officer also does not specifically state in whose custody and control the non-

laminated driving licence was kept. There is no material to find that the non-laminated driving licence which was found in the possession of Musthafa

was a document issued to the petitioner from his office and that it was a document to be kept in his official custody and control. Further, it is also not

explained how a non-laminated driving licence, if given to a private person, could be used for committing the offence of forgery.

Regarding the two security holograms found in the possession of the accused Bhaskaran, in the statement filed by the investigating officer, it is

mentioned as follows:

“It is revealed that during investigation a total number of 120 sheets of holograms (5880) having serial numbers from 364937 to 365056 were issued

to Sub Regional Transport Office, Tirur from C-Dit, Thiruvananthapuram. The same were received by the petitioner Sri.Viswanathan.K, who was in

charge of store and stationary of Sub Regional Transport Office, Tirur on 18.08.2014 and the same was verified and found correct by Joint RTO

Tirur. As per C-Dit Stationary stock register of sub regional transport office Tirur 20 sheets of holograms (980 numbers) having serial number from

364937 to 364956 were issued to the other accused Sri.Nasar CP, (Clerk SRT Office, Tirur) on the same day. During investigation it is revealed that

the two holograms seized from the accused person Sri.Bhaskaran (private individual) at the time of surprise check were issued to the accused

Sri.Nasar C.P. These holograms were issued by the store in charge Sri.Viswanathan.K (petitioner) to the accused Sri.Nasar C.P. As per office order

No.01/2014, petitioner Sri.Viswanathan.K was in charge of store and stationary of Sub Regional Transport Office, Tirur.â€​

It is specifically mentioned in the above statement that the investigation revealed that the holograms found in the possession of the accused

Bhaskaran had been issued to the accused Nasar (A3). Nasar was another Clerk in the same office in which the petitioner was working. Even

assuming that the petitioner had received the holograms and entered them in the stock register and thereafter issued them to the accused Nasar, it

cannot be found that it is an act of criminal misconduct. It cannot be found to be an act committed by the petitioner by corrupt or illegal means or by

misusing his official position. It is pertinent to note that the copy of the stock register (Annexure-A5) produced by the petitioner contains entry

regarding the issue of 980 holograms to the accused Nasar on 18.08.2014. If the petitioner had issued the holograms to another Clerk in the same

office for official use, it cannot amount to an act of criminal misconduct. If at all the petitioner was the person who issued the holograms to the

accused Nasar, it was not an act done clandestinely but it is an act revealed from the official records. Even according to the investigating officer, the

two holograms found in the possession of the accused Bhaskaran had been given out of the 980 holograms which had been issued to the accused

Nasar.

In the aforesaid circumstances, the allegation against the petitioner that he committed an offence under Section 13(1) (d) of the Act is absolutely

baseless.

Even before the filing of the final report, as per Annexures-A6 and A7 orders dated 10.02.2020 and 06.08.2020, this Court had quashed the

proceedings against the Joint Regional Transport Officer and the Junior Superintendent of the office who had figured as accused in the FIR.

Annexure-A7 is the copy of the order passed by this Court in Crl.M.C.No.1723/2020. As per this order, this Court had quashed the proceedings

against the Junior Superintendent of the RTO office at the crime stage itself. In Annexure-A7 order, this Court had stated as follows:

“Regarding the holograms, it is stated in the detailed statement dated 26.08.2019 that, they are issued from the office of the Transport

Commissioner Trivandrum and C-DIT. A Register is maintained in the Regional office, Tirur as C-DIT-stock register. From the register, it was

revealed that the petitioner herein was the custodian of the hologram. He has put signature for having accepted the holograms and checked and

verified the same in the stock register for its distribution among different clerks in the office. This position is confirmed through the statement of

various other witnesses. It was revealed that the holograms were also issued to 7 officers referred to in the above statement. ........ The above facts

clearly show that the physical custody of the holograms supplied to each clerk is with that clerk and he is answerable for it. .......

Hence, if any agent was found in possession of hologram, that has to be answered by the concerned clerk. Infact, it is stated in the reply that the 5th

accused had given holograms to the 8th accused, from whose possession it was recovered.â€​

The fifth accused referred to above is the accused Nasar and the 8th accused referred to above is the accused Bhaskaran. More or less the same

finding was also made in Annexure-A6 order passed by this Court quashing the proceedings against the Joint Regional Transport Officer.

Inspite of the clear finding made by this Court in Annexures-A6 and A7 orders that the clerk to whom the holograms were issued and who was in

physical custody of the holograms is answerable to the possession of the holograms with a third person and inspite of the fact that during the

investigation it was revealed that the holograms, which were found in the possession of the accused Bhaskaran, had been issued from the office to the

accused Nasar, the VACB has filed chargesheet against the petitioner.

In the aforesaid circumstances, in the absence of any material to connect the petitioner with the offence alleged against him, the proceedings

against the petitioner based on Annexure-A2 final report are liable to be quashed.

Consequently, the petition is allowed as follows: Annexure-A2 final report, as far as it relates to the petitioner, and all proceedings against the

petitioner based on Annexure-A2 final report, are hereby quashed.