Kerala High Court
Muralidharan Nair vs State Of Kerala on 21 May, 2004
Equivalent citations: 2004CRILJ3739, 2004(2)KLT1102
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. These two appeals are by the same accused who faced conviction under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1945 and under Section 161 IPC as it stood at the material time and under Section 420 IPC. He had been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with a default sentence under Section 5(2) and with a further direction to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with a default sentence under Section 420 IPC. No separate sentence was awarded under Section 161 IPC. He was found guilty in two separate cases which were filed against him, C.C. 18/1991 and C.C. 19/1991 on the file of the Enquiry Commissioner and Special Judge, Thrissur. These cases were charged by the Vigilance Police Station in Crime No.4/84. The crime was registered as per Ext.P34 FIR dated 10.2.1984. At that time the appellant figured as accused No.2 along with accused No. 1 the Assistant Engineer of Electrical Section concerned. Accused No.2, the appellant is alleged to have committed the offence with the connivance of the Assistant Engineer. But when final report was filed by PW20, who investigated the case, the accusation was only against the appellant. There was no change against accused No. 1. Altogether PWs. 1 to 20 were examined in the first among the two cases and PWs. 1 to 16 were examined in the other case. 41 documents were marked in the first case and 26 documents were marked in the second case by the prosecution. In the first case two contradictions in the C.D. statements were marked as D1 and D2.
2. Appreciating the evidence on record the Court below found the appellant guilty of the offence charged against him and accordingly convicted as aforesaid. It is under challenge in these two appeals.
3. The primary contention raised before me is that the Assistant Engineer, the first accused in the case charged by the vigilance wing was cited as PW.2. He was the immediate superior officer of the appellant at the relevant point of time. Really he had obtained statements like Exts.P 16, 20, 21, 25, 26 and 30 from the witnesses concerned. These were signed statements obtained by him for implicating the appellant/accused. It is stated that the tongues of the said witnesses were thus tied by PW2, so that they cannot go back from the signed statements which were focused on the appellant alone. Thus PW2 had taken steps to absolve himself from the accusation. In such circumstances such statements could not have been relied on as tangible evidence against the second accused, as it had been produced by the first accused so that he could escape. In this regard a Full Bench decision of this Court reported in State of Kerala v. Samuel, 1960 KLT 666, is relied on.
4. It is further submitted by the appellant/accused that he was only a line helper. The electric connections in question have been given upon orders of the Assistant Engineer, PW2. It has been upon the directions of PW2 that he had given the alleged unauthorized connections in these cases. When the Assistant Engineer, the head of office had directed the appellant to give connection to the consumers concerned, he did not have an opportunity to verify whether those were unauthorized or authorized. Therefore he was obeying the lawful directions of the officer, PW2, in that matter. He did not do anything irregular or unauthorized, it is submitted.
5. Ext.P35 First Information Report discloses that a case was registered against PW2 and the appellant on 10.2.1984, after a preliminary enquiry conducted by the Vigilance Inspector, based on a petition submitted by one Ravindran Nair, to the Hon'ble Chief Minister who forwarded the same to the vigilance.
6. On the other hand PW2 the Assistant Engineer has deposed before the Court below that as is revealed in Ext.P1 5 office order book marked in first among the cases, which is marked in the second case as Ext.P1, that this book shows that the appellant had been allotted the work in Chenapady centre in Kanjirappilly Electrical Section. PW1 was an overseer under whom he had to work. PW2 got information from PW1 that while conducting the reading, he detected an unauthorized connection given to PW3. On receipt of the report, PW2 informed his superior the Assistant Executive Engineer and he inspected the spot and obtained a statement from PW3 who got the unauthorized connection. Ext.P16 in the case is the signed statement by PW3. That statement was recorded on 28.7.1983. PW2 informed his superior that there are other unauthorized connections. Later it was found out that unauthorized connections were given to PWs. 5 and 6. Statements were obtained while inspecting the spot along with Executive Engineer from PWs.5 and 6 on 25.7.1983 and 28.7.1983. But those statements were not taken by PW2 but by PW7, immediate superior officer of PW2 at the relevant point of time. Exts.P20 and P21 in the first case are the statements taken from the workers employed by the first accused in order to give connection to PW3. They are the casual workers of the first accused.
7. True PW2 had taken statements Exts.P6, P20 and P21, but those were far earlier than the registration of the crime as per Ext.P35 on 10.2.1984. Therefore those were not the statements taken during the pendency of the investigation of the crime. What is depreciated by the Full Bench in Samuel's case is obtaining signed statements by the investigating officer from the witnesses. Exts.P16 to 21 statements taken by PW2 are not under 161 Cr.P.C. Equally so, P25, P26 and P30 are the statements taken by PW7. Thus the decision reported in State of Kerala v. Samuel, 1960 KLT 666, does not have any application to these cases.
8. As already mentioned above, Ext.P35 FIR was registered on 10.2.1984. Unauthorised connections were detected far earlier in July 1983. Necessarily PW2, being the head of office, under whom unauthorized connections were effected by his subordinates, has to take appropriate departmental action against the employee concerned and also to report the matter to the superiors. The appellant was placed under suspension, as is revealed by Ext.P33 on 28.7.1983, far earlier than the registration of the crime. Such suspension was pending disciplinary action. Necessarily the aforesaid statements were taken for the purpose of initiating disciplinary action against the erring incumbent and also for departmental proceedings. In a case like this, it was probable to continue the parallel proceedings. Department has been given the authority to take disciplinary action and the Vigilance to initiate criminal proceedings. Therefore the aforesaid statements, cannot be said to have vitiated the investigation or the trial.
9. In this case, it is true that PW2 also figured as the accused, when Ext.P35 crime was registered. The only allegation against PW2, as is revealed by First Information Report is that he has connived to give unauthorized connections. But the investigation revealed that he did not have any role in that. Naturally the final report was filed by PW20, the investigating officer, only against the appellant/accused.
10. The materials on record also revealed the same. Ext.P8 in the first case is the priority register kept in the office of PW2 where the applications for electrical connection have been entered and registered assigning the respective applicants consumer number even from the date of application filed by them. Connections were given on according to the priority. Copy of Ext.P8 priority register had been marked in the second case as Ext.P15. These registers revealed that the applications given by PWs. 5, 4, 3 and 6 in the first case and PW3 in the second case have been only registered, but had not been given connection even up to 20.8.1983. Going by the said priority register, the application submitted by PWs.3 to 6 in the first case and PW3 in the second case had not attained priority to give connection. On the other hand, the said witnesses had clearly deposed before the Court below that they had been given connection by none other than the appellant. They had also stated that they had given amounts demanded by the appellant.
11. It is in this regard the contention of the appellant that he had given connections upon directions from PW2 has to be looked into. Even when connections had been given by the appellant upon direction by PW2, there was no occasion for the appellant to obtain money from the said consumers, namely PWs. 3, 5 and 6 in the first case and PW3 in the second case. If at all money was to be obtained, it would have been obtained by PW2. Thus, it is clear that the accused had been given unauthorized connections.
12. PWs.3, 5 and 6 in the first case and PW3 in the second case had clearly deposed before the Court below that they had paid amounts for obtaining connection to the appellant/accused. The priority register mentioned above discloses that the applications of these witnesses had not attained priority. Necessarily the connection given by the appellant to them are unauthorized connections. It is also revealed by PW19, that meter changing register and other registers show that the appellant had obtained materials from the officer concerned on other pretexts. Thus the motive of the appellant is also proved in this case, that he had an ultimate intention to give unauthorized connections to the said witnesses.
13. Going by the evidence of PWs.3, 5 and 6 in the first case and PW3 in the second case, it is clear that they had paid money to obtain such connection to the appellant/ accused. There is no reason to disbelieve their version. In such circumstances, it is clear that the appellant by corrupt and illegal means abusing his official position as a public servant, obtained for himself valuable things and pecuniary advantage, thereby committing the offence under Section 5(1)(d) which is punishable under Section 5(2) of the Prevention of Corruption Act, 1945. Consequently the conviction under the said provisions shall have to be sustained.
14. Section 161 IPC, as it then stood, deals with illegal gratification by a public servant. It is also proved by the evidence on record as discussed above.
15. He had obtained illegal gratification from PWs.3, 5 and 6 in the first case and PW3 in the second case, in order to cheat them as if he was giving regular connection to them. Therefore, he had committed the offence punishable under Section 420 IPC as well.
16. Hence the conviction and sentence are to be confirmed. There is no reason for interference with the judgment impugned. Accordingly, the conviction and the consequent sentence are upheld. Appeal fails. Dismissed.