Kerala High Court
A. Sreedharan Nair vs State Of Kerala on 13 December, 2016
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY,THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938
CRL.A.No. 281 of 2001 ( )
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CC.NO. 37/1999 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR
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APPELLANT/ACCUSED :
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A. SREEDHARAN NAIR,
S/O.DAMODARAN PILLAI, FORMER PEON,
P.H. SUB DIVISION, KWA- CHANGAGANASSERI,
RESIDING AT KALLUNGAL HOUSE,
CHOZHIRJAKKADU PANACHICKKADU VILLAGE,
KOTTAYAM TALUK.
BY ADVS.SRI.P.RAVINDRA BABU
SRI.SURIN GEORGE IPE
RESPONDENT/COMPLAINANT :
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SHEEBA.M.T.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 24-10-2016, THE COURT ON 13-12-2016 DELIVERED THE
FOLLOWING:
sts
P.UBAID, J.
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Crl.A No.281 of 2001
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Dated this the 13th December, 2016
O R D E R
The appellant herein was a Peon in the P.H. Sub Division of the Kerala Water Authority during 1994-1995. On the allegation that he dishonestly and fraudulently made others, including his friends and relatives, believe that he is highly placed in the Water Authority, and can provide employment to persons in different capacities in the Water Authority, he received huge amount from various persons offering job to them in the Water Authority, even created or forged appointment orders in the name of high officials, and thus cheated many persons, he faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C No.37/1999. The total amount alleged to have been received by him during 1994-1995 is 4,24,200/-. On complaints regarding such misconduct and cheating, the Vigilance and Anti-Corruption Bureau (VACB), Kottayam conducted a preliminary enquiry, and found on enquiry that the allegations are true. Accordingly, Crime Crl.A No.281 of 2001 2 No.V.C 8/96 was registered by the VACB, Kottayam. After investigation, the VACB submitted final report in the court below.
2. The appellant appeared before the trial court, and pleaded not guilty to the charge framed against him under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act ( 'the P.C Act' for short) and also under Sections 420, 465, 468, 471 and 466 of the Indian Penal Code.
3. The prosecution examined 49 witnesses, and proved Exts.P1 to P66 documents during trial. When examined under Section 313 Cr.P.C, the accused projected a defence of total denial and contended that he had not received any amount from anybody on a promise to provide job in the Kerala Water Authority, and that he had not conducted any test or interview as alleged. In defence, the accused examined two witnesses and marked Exts.D1 to D8 documents.
4. On an appreciation of the evidence adduced on both sides, the trial court found him guilty under Section 13 Crl.A No.281 of 2001 3 (2) read with 13 (1) (d) of the P.C Act, 1988, and also under Section 420 I.P.C. He was found not guilty under Sections 465, 466, 468 and 471 I.P.C. The trial court found, on an appreciation of the entire evidence, that the appellant had received huge amount from various persons on a promise that he would provide job to them in the Kerala Water Authority, and he thus gained monitory benefits by such dishonest act.
5. On conviction, the accused was sentenced to undergo rigorous imprisonment for five years, and to pay a fine of 2 lakhs under Section 13 (2) read with 13 (1) (d) of the P.C Act, and to undergo another period of rigorous imprisonment for five years, and to pay a fine of 2 lakhs under Section 420 I.P.C by judgment dated 20.3.2001 in C.C No.37/1999. Aggrieved by the judgment of conviction, the accused has come up in appeal.
6. When this appeal came up for hearing, the learned counsel for the appellant submitted that the factual allegations made by the prosecution stand not properly and satisfactorily proved, that the material witnesses examined Crl.A No.281 of 2001 4 by the prosecution are not definite regarding the payment of money as alleged by the prosecution or regarding the dates of such payments, and also that the appellant is entitled for acquittal on the legal ground that there is no proper prosecution sanction in this case by the competent authority.
7. On the other hand, the learned Public Prosecutor submitted that the prosecution sanction in this case was issued by the proper and competent authority under the law and that all the material witnesses have given convincing , satisfactory and acceptable evidence proving acceptance of money by the accused on different occasions offering to provide job to them.
8. Before going to the factual aspects, let me see whether the contention raised by the appellant regarding prosecution sanction is tenable under the law. The basic law dealing with establishment, maintenance, administration and management of the Kerala Water Authority is the Kerala Water Supply and Sewerage Act, 1986 ( 'the Act' for short ). Section 8 (3) of the Act provides that the appointment and Crl.A No.281 of 2001 5 conditions of service of the officers and employees of the authority shall be governed by Rules made by the Government from time to time. Such Rule making power is given to the Government under Section 64 of the Act. This provision enumerates various matters on which the Government can make Rules as provided under Section 8 (3) of the Act. Power of appointment of officers or staff or the power to initiate disciplinary proceedings or to impose penalty including termination of service, is not seen enumerated as a subject under Section 64 (2) of the Act. Section 65 of the Act empowers the Kerala Water Authority to make regulations not in consistent with the Act and the Rules made thereunder, for the administration of the affairs of the Authority, with the previous approval of the Government. Sub-section 2 of Section 65 deals with the different subjects and matters on which such regulations can be made. Clause (b) deals with the powers and duties of the employees of the authority. The learned counsel for the appellant referred to the Kerala Water Authority (Administrative, Ministerial and Last Grade) Service Rules, Crl.A No.281 of 2001 6 2011 made in continuation of, and also in supercession of the Rules made in 1986. These are the Rules made by the Government in exercise of powers under Section 64 of the Act, but the present Regulations dealing with the powers and duties of the employees of the Water Authority are the Regulations of 1999, by-name Kerala Water Authority ( (Powers of Employees) Regulations 1999, made in exercise of the powers under Section 65 of the Act. These Regulations deal with the appointment powers of different categories of officers of the Water Authority and also their powers to initiate disciplinary action and to impose punishment . Appendix-I to the Regulations deal with the powers of appointment of the various officers like Managing Director of the Kerala Water Authority and other officers, from the Chief Engineer level to the Administrative Officer Gr.II level. Item No.1.05 in this appendix deals with the disciplinary powers of the various categories of officers from the Managing Director level to the Assistant Executive Engineer level. These Regulations will show that the Chief Engineer of the Kerala Water Authority is the competent Crl.A No.281 of 2001 7 person to make appointments of different categories including Peons and also to initiate disciplinary action and to impose punishment on such categories of employees.
9. Ext.P1 is the prosecution sanction issued in this case under Section 19 of the P.C Act, 1988. This is a sanction issued by the Chief Engineer, Southern Region, Kerala Water Authority. He was examined as PW1 to prove the prosecution sanction. His evidence is that, this sanction was granted by him on a consideration of all the relevant aspects and materials produced by the Vigilance and Anti- Corruption Bureau, and he decided to issue sanction on an independent application of his mind. The sanction also shows that the sanctioning authority had perused the relevant materials and documents in the process of granting sanction. The defence could not convince the court that the right and the competent authority to appoint a Peon, or to terminate him from service is not the Chief Engineer. The contention raised by the defence that only the Managing Director of the Kerala Water Authority is competent to make such appointments or to impose punishments is untenable. Crl.A No.281 of 2001 8 Of course, some categories of officers can be appointed at the top level by the Managing Director, but the right authority to make appointments at the lower level is, no doubt, the Chief Engineer, and also some other Engineers below him. I find that Ext.P1 prosecution sanction in this case was granted by the competent authority, and the prosecution sanction stands well proved in evidence.
10. PW2 to PW44 and PW47 are the witnesses examined by the prosecution to prove the factual aspects regarding demand and acceptance of money. The misconduct alleged against the appellant is that by misusing his position as an employee of the Kerala Water Authority, he created an impression and also made his friends and relatives believe that he has got high influence over the top officials of the Water Authority, that he can provide job under various lower categories in the Authority, he even made a promise that he would provide job, and accordingly he received huge amount from various persons including his friends and relatives. It is alleged that to make the job seekers believe that his promise is genuine and that he has Crl.A No.281 of 2001 9 influence and competence to provide job, the accused even conducted a fake examination or interview and he even issued appointment orders to some of the job seekers, and to such persons who received such forged appointment orders, the accused even made payment of some amount as salary on one or two occasions.
11. PW2 turned hostile to the prosecution at the initial stage, but when cross-examined by the learned additional Public Prosecutor with the permission of the Court, he practically admitted that he had paid 4000/- to the accused towards the amount of 5000/- demanded by the accused for providing job to his wife, and that 10,000/- was paid by his brother also for job on the offer made by the accused. He even stated that money was received by the accused saying that it was meant for payment to the Port- folio Minister. PW3 is the brother of PW2. He has corroborated the versions of PW2 regarding payment. PW4 is another brother of PW2. His evidence is that he had paid 10,000/- to the accused, and after three months, the accused obtained a voucher from him after making payment Crl.A No.281 of 2001 10 of 1,200/-, saying that it was salary for the said month. Thereafter, nothing was paid by the accused, and he did not obtain any job also as offered by him. A complaint was filed against the accused by PW4, and on the said complaint, the accused faced trial before the Chief Judicial Magistrate Court, Kottayam in C.C 152/1997. PW3 and PW4 have given evidence as prosecution witnesses in the said case. The evidence given by PW3 and PW4 proving demand and acceptance made by the accused stands not in any manner discredited. These witnesses were not effectively cross- examined by the defence.
12. PW5 has given evidence that he was offered the job of Driver in the Water Authority by the accused and 15,000/- was paid by him as demanded by the accused. Later, when the accused failed to provide job and failed to return the money, two cheques were issued by him. The witness also proved Exts.P4 to P6, P8 and P9 letters written by the accused, promising to return the money received by him. Though two cheques were issued by the accused, he could encash only one. PW5 stated that money was paid by Crl.A No.281 of 2001 11 him through PW32. This is corroborated by the evidence of PW32 also. Exts.P4 to P9 documents will show the transaction between the accused and PW5. Of course, these documents will not show that the money was received by him on an offer to arrange job in the Kerala Water Authority. So the accused would contend that it was money borrowed by him, and all the letters promising to return the money were issued by him in connection with the said borrowal transaction. This defence version is unbelievable in view of the clear and consistent evidence given by PW5 regarding the offer made by the accused.
13. Discussion of the evidence given by the other material witnesses is not in fact necessary because it would be a repetition of the discussions regarding the evidence given by the others up to PW5. However, let me discuss the evidence of some of them.
14. PW7 is a relative of PW2 and PW3. He has also given evidence regarding payment of some amount to the accused for getting job in the Kerala Water Authority. His evidence is that he was not in fact aware of the fact that the Crl.A No.281 of 2001 12 accused was only a Peon because he was made to believe that he is a high official in the Water Authority. Accordingly, he made payment on the belief that the accused would provide job in the Water Authority. PW9 has given evidence regarding payment of money to the accused. Her evidence is that, job was offered by the accused to her children, and they in fact made payment in her presence as demanded by the accused. The witness also proved Ext.P11 letter written by the accused, containing his promise to return the money. The evidence of PW9 is that out of the total amount 25,000/- was paid by Saralamma for her son Binu, and 22,000/- was paid by her for the job offered to her children. PW10 is the said Saralamma. She has well corroborated PW9, and the evidence of these two witnesses well convinces this court that a total amount of 47,000/- was received by the accused from them on an offer to arrange job to their children in the Kerala Water Authority. These two witnesses also stated that on two occasions, some amount was paid by the accused making them believe that it was salary obtained from the Kerala Water Authority. Crl.A No.281 of 2001 13
15. PW11 has given evidence regarding payment of 15,000/- to the accused for the job offered to his son, who is a Graduate. An agreement was also executed by the accused, the copy of which is marked as Ext.P12. The original has been produced in a civil suit claiming money from the accused. PW13 has proved payment of 30,000/- for the job offered by the accused in the Kerala Water Authority. The evidence of PW16 is regarding payment of 10,000/- as demanded by the accused for the job promised by him in the Kerala Water Authority. He has also proved Ext.P20 to 26 letters and envelopes sent by the accused, admitting receipt of money and promising to make payment without delay.
16. PW17 has given evidence proving the payment of 20,000/- to the accused for the job offered by him, and he has also proved Exts.P27 and P28 letters of the accused where he has admitted receipt of the amount and offered payment without delay. The evidence of PW18 is that 50,000/- was demanded by the accused for the job promised by the accused in the Kerala Water Authority, but only Crl.A No.281 of 2001 14 32,000/- was paid at the initial stage. PW19 has proved payment of 15,000/- to the accused for the job offered by him. Ext.D1 contradiction proved through him is not very material in this case. 10,000/- was paid by PW23 for the job offered by the accused, and this witness had even undergone a test conducted by the accused. After the test, he even issued an appointment order, but the witness could not join anywhere. He realised later that he was being cheated by the accused. The evidence of PW25 is regarding payment of 10,000/- for the job as Valve Operator in the Kerala Water Authority. His evidence is that, he was asked by the accused to wait till the opening of a scheme formulated by the Water Authority, to join as Valve Operator. The payment made by PW25 is further proved by the evidence of PW16, PW24 and PW23 who had witnessed the payment. These witnesses also stated about a test conducted by the accused for the job offered by him. They have stated that the accused had even collected 200/- each from them for opening their service book. PW26 had paid 35,000/- to the accused for a job for the sister of his Crl.A No.281 of 2001 15 brother-in-law. This witness has also given evidence regarding a test conducted by the accused, and he has proved Ext.P33 series letters written by the accused, wherein, the accused has admitted receipt of money and made a promise to return the money. PW27 has given evidence regarding payment of 18,000/- for the job offered by the accused in the Kerala Water Authority. His evidence is that 20,000/- was demanded, but only 18,000/- was paid. He has also stated about a false test conducted by the accused. This witness also proved Exts.P34 and P35 letters written by the accused. PW29 had paid 10,000/- to the accused, and he also proved the appointment order issued by the accused in the name of the Assistant Executive Engineer of Kerala Water Authority. The evidence of PW30 is regarding the payment of 20,000/- to the accused for the job offered to his son Sumesh Kumar as Valve Operator. Some papers were brought by the accused and Sumesh signed in those papers believing that he has obtained the job as offered by the accused Later, Sumesh was taken to the Kerala Water Authority Office at Thiruvalla, Crl.A No.281 of 2001 16 but after waiting outside for a few hours, he had to return. Even a fake appointment order was handed over by the accused when he received money. A cheque issued by the accused to ensure performance of the offer made by him was taken back and a pro-note was issued by him for 20,000/-. PW31 is the wife of PW2. Though PW2 turned hostile to an extent, PW31 supported the prosecution.
17. PW33 has given evidence regarding payment of 10,000/- for the job offered by him in the Kerala Water Authority He further stated that he was taken to Thiruvananthapuram by the accused, and he was asked to wait outside the office of the Kerala Water Authority there. Later, he was taken to the office at Ernakulam, but the witness could not join duty anywhere. The evidence of PW36 is regarding payment of 25,000/- for the job offered to him. He says that along with PW34 and PW35 he was also taken to Thiruvananthapuram for a test, and after that some amount was paid by the accused in two months towards salary. It was 630/- in one month and 1340/- in the next month. He was also made to sign in a particular Crl.A No.281 of 2001 17 book by the accused saying that it was to record his appointment. PW39 has given convincing evidence that the accused had posed himself as Field Officer in the Kerala Water Authority at Changanacherry and that he had very often declared and made the people believe that he was competent enough, having influence over the high officials to provide job in the Kerala Water Authority Believing the words of the accused, she along with PW37 Santhamma met the accused at his house, and Santhamma paid 15,000/- for the job offered to Subhash, and another amount of 15,000/- was received for the job offered to Ambili. An agreement was also executed by the accused there. PW41 is the said Ambili who has proved the payment. PW47 examined as a material witness turned hositle. He was a co-accused with the appellant in C.C No.226/1997 before the Chief Judicial Magistrate's Court, Kottayam, wherein, cheating jointly made by him and the accused had alleged in the matter of job offer.
18. PW45 is the Assistant Executive Engineer who had conducted a disciplinary enquiry against the accused. Crl.A No.281 of 2001 18 His evidence is that on enquiry, it could be found that the accused had received money from various persons on an offer to provide job in the Kerala Water Authority. PW46 is the Assistant Sub Inspector who registered the crime initially under Section 420 I.P.C. Exts.P43, 45 and 47 cheques and Ext.P49 Pro-note issued to PW21 stand well proved by evidence. Of course, the transaction is recorded as a borrowal transaction in the Pro-note. But the witnesses are definite that it was executed by the accused in discharge of the money received by him for providing the job offered by him in the Kerala Water Authority. PW48 and PW49 are the VACB officials, who conducted investigation and submitted final report. There is nothing in the evidence of DW1 and DW2 examined by the defence to prove the defence projected by him that iIt was in a money transaction, he received money from various persons.
19. On an appreciation of the entire evidence given by the material witnesses as discussed above, I find that the evidence given by these witnesses stands not discredited in cross-examination. All the material witnesses are consistent Crl.A No.281 of 2001 19 regarding payment of various amounts to the accused on different occasions for the job offered by him in the Kerala Water Authority. It is pertinent to note that no witness was in fact effectively or extensively cross-examined by the defence. It appears that the accused would practically admit acceptance of money from various persons, subject to the defence that it was borrowed by him, or that the different transactions were only borrowal transactions. This suggestion is stoutly denied by all the material witnesses. The defence could not bring out anything in the cross- examination of any of the witnesses to show that money was in fact borrowed by the accused, or that it was not accepted or received by him on an offer to provide job in the Kerala Water Authority. The defence is that, had it not been a borrowal transaction, the accused would not have issued cheques and pro-notes. The transaction is well explained by the material witnesses that when they demanded money, the accused issued such documents. All are consistent that money was paid for the job offered by the accused in the Kerala Water Authority and everybody is definite and Crl.A No.281 of 2001 20 consistent that it was not paid in any borrowal transaction. It appears that with the confidence that a transaction of borrowal could be established with the help of the cheques and pronotes, the material witnesses were not extensively or effectively cross-examined by the defence. Anyway, all are consistent that money was received by the accused for the job offered by him in the Kerala Water Authority.
20. That the accused was a Peon in the Kerala Water Authority is not in dispute. He was a public servant as on the relevant date. Of course, he was later terminated and thus ceased to be a public servant after the prosecution brought against him. The prosecution sanction also stands well proved in this case, All the witnesses are consistent and definite in evidence that they were cheated by the accused by a false offer that he would arrange or provide job in various capacities in the Kerala Water Authority. Of course, it is true that the forgery alleged by the prosecution stands not proved. Though some other witnesses stated that some false or forged appointment orders were handed over by the accused, these orders could not be proved during Crl.A No.281 of 2001 21 trial. So the accused was rightly found not guilty by the court below under Sections 465, 468 and 471 of I.P.C. A clear case of misconduct as defined under Section 13 (1) (d) of the P.C Act, is well proved by the evidence of material witnesses, and this conduct on the part of the accused amounts to cheating also. Most of the witnesses have stated that the accused had posed himself as a top official of the Water Authority and they happened to make payment only because they believed him. These witness would not have made payment, had they really come to know of his real status or designation in the Kerala Water Authority. Thus, a clear case of cheating is well proved by the evidence of all material witnesses. While working as a public servant, the accused received money deceiftully from various persons for his benefits on a false promise that he could arrange job at his office. This is a clear case of misconduct as defined under the P.C Act. I find that the accused was rightly found guilty by the trial court under Section 13 (2) read with 13 (1) (d) of the P.C Act and under Section 420 I.P.C. I find no reason or ground to reverse the Crl.A No.281 of 2001 22 finding or to set aside the conviction.
21. In the particular circumstances of the case, I feel it appropriate to modify the sentence imposed by the trial court. The prosecution was initiated in 1996, and the trial court disposed of the case only in March, 2001. In the same year, this appeal was filed, but consideration of the appeal was delayed. Now we are in 2016. Considering the long lapse of years since the initiation of prosecution and also the fact that the accused has also lost his employment, I feel that rigorous imprisonment for two years under the two Sections and a fine of 1 lakh will be the proper and adequate sentence in this case. To this very limited extent of reduction in sentence, the appellant can be given the benefit of this appeal.
In the result, this appeal is allowed in part to the very limited extent of reducing and modifying the sentence imposed by the court below. The conviction against the appellant in C.C No.37/1999 made by the court below is confirmed. However, the sentence imposed by the court below will stand modified and reduced, that it shall be Crl.A No.281 of 2001 23 rigorous imprisonment for two years each under Section 13 (2) read with 13 (1) (d) of the P.C Act and Section 420 I.P.C and also a fine of 1 lakh under Section 13 (2) read with 13 (1) (d) of the P.C Act with a default sentence of rigorous imprisonment for six months. The two substantive sentences will run concurrently.
Sd/-
P.UBAID JUDGE ma /True copy/ P.S to Judge