Kerala High Court
K.V. Sugathan vs State Of Kerala on 21 March, 1991
Equivalent citations: 1991CRILJ2211
JUDGMENT S. Padmanabhan, J.
1. Accused is the appellant. Though he was tried for offences punishable under Sections 161 and 201 of the I.P.C. and Section 5(2) of the Prevention of Corruption act, conviction is only for the offence under Section 161 of the Penal Code. Sentence awarded is fine of Rs. 3,000/-.
2. He was the District Social Welfare Officer, Ernakulam and District President of the Kerala State Social Welfare Employees' Association (Association). P.W. 1 Elsy was the President of the Deseeya Vanitha Sangham, Vaduthala, which was running a feeding centre (Centre) for the benefit of children in need of nutritious food under the World Health Programme at her residence. Appellant was the person responsible for passing indent for supply of food articles to the Centre. Prosecution case is that on 20-3-85, as a motive or reward for passing indent for supply of wheat, he demanded Rs. 200/-from PW 1 and received Rs. 150/- from her on 27-3-1985 and thereafter dishonestly created false evidence and caused disappearance of evidence in order to screen him from legal punishment.
3. On 27-3-1985, PW 1 gave Ext. P1 complaint to the Deputy Superintendent of Police (Vigilance), PW 8, He arranged a trap on the same day and the amount was received soon after payment.
4. Appellant admitted having received the amount. His case is that it is a treachery played by PW 1. He would say that PW 1 was receiving benefits without actually feeding children. He visited the Centre on 6-3-1985 and directed P.W. 1 to produce children's register, attendance register, accounts and other records on or before 27-3-1985. Though PW 1 appeared on 20-3-1985, she did not produce the records and hence indent was not passed. Amount of Rs. 150/- paid and received on 27-3-1985 was a voluntary payment as donation to the second annual convention of the Association, for which coupons were also given to PW 1. She filed Ext. P1 and caused trap being arranged only to wreak vengeance because indent was not passed in her favour.
5. On the evidence, Special Judge practically accepted the defence case as correct. Regarding demand, evidence came from her alone. She was not believed by the Special Judge. Her evidence is that on 20-3-1985, she appeared before the appellant and produced the registers demanded by him on 6-3-1985, but the appellant demanded Rs. 200/- as remuneration. There is nothing to show that registers were produced. Evidence of PW 1 itself disproves this case. She said that on 20-3-1985 also, appellant demanded registers. She never told the investigating officer or in Ext. P 1 that the registers were produced. This omission is proved through the investigating officer. No registers were produced in court by P.W. 1 or prosecution and no registers were searched and seized. Possible conclusion from the evidence is that no registers were maintained and children were not fed and PW 1 was misappropriating the benefits. After 6-3-1985, PW 1 has not produced any records. She did not get any supply and the Centre has become defunct. These facts are practically admitted by the Special Judge himself, but he says that these are irrelevant matters.
6. On 27-3-1985, at the time of recovery of the amount itself, appellant told PW 8 that the amount was received by him. as voluntary donation, for which vouchers were issued. PW 8 admitted this fact and he recorded so in Ext. P3 mahazar. Exts. P4 and 6 to 9 are records of the Association seized by PW8 during investigation. These records and the evidence of PWs 4, 5 and 7 revealed the fact that the defence version is correct. Appellant himself gave evidence as D W 3 and proved Exts. D1 to D4(a). Ext. D1 is the charge memo issued against the appellant for having received Rs. 150/- from PW 1 as donation to the Association and Ext. D2 is the explanation submitted by him. Exts. D4 and 4(a) are the counter-foils of the coupons for Rs. 150/-issued by him to P W 1. These are not disputed documents. DW 2 is the President of another feeding centre. He said that his centre also gave similar donation to the appellant on behalf of the Association. DW 1 was the successor of the appellant. He proved that Ext. P9 was regularly maintained by the Association and the entries were made then and there. As D W 3, appellant said that this is the only amount received by him from PW 1. PW 1 also admits that fact. She would say that amount paid was not donation, but illicit gratification demanded and received from her.
7. In Ext. P 4, there is Ext. P 4(a) entry made by the appellant on 6-3-1985 directing PW 1 to produce records on or before 27-3-1985 at his office. Subsequently, there is Ext. P 4(b) entry by the Child Welfare Inspector on 20-4-1985 directing PW 1 to keep the children who are the beneficiaries, ready for physical verification in order to pass the indent. But PW 1 did not appear and she did not do anything. Special Judge noted all these facts and said that they are drawbacks in the prosecution. It was also found by the Special Judge, in paragraph 21 of his judgment, that Exts. P7, 8, 9 and other records are not manipulated documents, but kept in the ordinary course of business. That finding was based on the evidence of the officers of the Association examined as prosecution witnesses. It was found that they are records ordinarily kept by the Association for collection of funds. Accepting these documents in proof of the defence version, appellant was acquitted of the charge under Section 201 of the Penal Code.
8. In spite of these items of evidence and findings, Special Judge curiously found, in paragraph 17, that as per Ext. P 4(a) direction of the appellant on 6-3-85 to produce the records before 27-3-1985, PW 1 produced them on 20-3-1985 and that the amount might have been received as illegal gratification. That conclusion is against his own finding to the contrary and against the evidence also. Special Judge says that in spite of all the draw backs, presumption under Section 4 can be drawn, when recovery of money is proved, that he withheld passing of indent for the purpose of obtaining donation for the Association. There is no charge and there is no case for the prosecution or P. W. 1 that indent was withheld for the purpose of coercing PW 1 to make donation for the Association. Case is that he demanded and received illegal gratification for himself. According to Special Judge, whatever be the prosecution case or evidence, the moment it is found that a particular amount was received and it is not legal remuneration, offence is complete even if the amount was received for a laudable purpose. Admission of acceptance of money and non-supply of food materials to the Centre are the only circumstances which prompted the Special Judge to convict the appellant for an offence under Section 161 of the Penal Code. I could only say that the conviction is unfortunate.
9. Even on the reasonings and conclusipns of the Special Judge, conviction cannot stand. In order to sustain conviction under Section 161, there must be receipt of gratification 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 exercise of his official functions, favour or disfavour, etc. Even the Special Judge admits that there is no evidence to show that the amount was received as motive or reward for anything. Prosecution case and evidence is demand and receipt unconnected with the donation for the Association. Motive or reward alleged by the prosecution stands disproved. Demand for bribe also stands disproved not only by the evidence of PW 1, but from other circumstances also. Evidence is that indent was not passed and food materials not supplied only because PW 1 did not satisfy the requirements. Clinching evidence is that the amount accepted by the appellant was unconnected with the official favour or disfavour alleged by the prosecution and it is only donation to the Association. By giving donation, PW 1 might have expected some favour. But there is nothing to show that donation was demanded or paid as motive or reward for anything. Receipt of donation may be against conduct rules or it may even be a crime. But the appellant was not called upon to answer such a charge. He could be convicted only if the case he is called upon to answer is proved. Failure of the prosecution to establish its case cannot be compensated by an admission of the accused in order to convict him. There seems to have been a confusion of thought by the Special Judge.
10. Special Judge seems to have been misled by the decision in Sumanlal Shivlal v. State of Gujarat 1977 Cri LJ 626, in which there is an obiter that even amount received for a laudable purpose and not for the personal benefit of the accused could come under Section 161 of the Penal Code if the other conditions are satisfied. But that could only be in cases where there is allegation and evidence that the amount was demanded and received for doing or forbearing to do an official act and if that amount is not the legal remuneration. Appellant was not prosecuted for having illegally received donation for the Association as motive or reward for any official action or inaction. Such an aspect, if any, from the prosecution evidence was not put to him when questioned under Section 313 of the Code in order to give him an opportunity for personal explanation. When the accused was not told that he was being tried for having received donation to the Association and when he was not given an opportunity to explain that aspect when questioned under Section 313, conviction, on such a ground, will amount to denial of fair trial. Ignoring the prosecution case, an accused cannot be convicted on something which is admitted by him even if that amounts to an offence. Conviction could only be after a trial on that charge.
11. Errors or omissions in the charge shall not be regarded as material unless the accused was misled and failure of justice was occasioned, as stated in Section 215 of the Code. That question will arise only when there is a charge. Even an omission to frame a formal charge or an irregularity in the charge, including any misjoinder of charges, will not render conviction invalid unless failure of justice was occasioned, as Section 464 of "the Code indicates. But, even in such cases, accused must have been made to understand the accusations correctly in some way or other, so that he was able to defend himself. So also, there is Section 465, which is capable of curing errors, omissions or irregularities. So also, errors or omissions could be cured by addition or alteration in the charge and the trial could be proceeded, as provided in Section 216, if the accused or prosecution is not prejudiced. It is, therefore, clear that no error or omission in the charge and not even a total absence of a charge cuts at the root of the trial in the absence of prejudice leading to miscarriage of justice. If the error is not observed and corrected, High Court is empowered to direct a re-trial only if the accused was misled in his defence. As stated in Section 465 (2), in determining whether any error, omission or irregularity in any proceeding has occasioned failure of justice, court shall have regard to the fact whether the objection could and should have been raised at the earliest stage in the proceedings. But that question cannot arise in this case where there was no charge at all for the offence for which he was convicted. Conviction for that charge could have been known to him only when the judgment was pronounced.
12. Sections 221 and 222 of the Code are also worth consideration in connection with conviction in the absence of a charge. These are the only two sections which define the limits within which the court may convict in spite of the fact that there is no charge for the particular offence. When Section 464 is read along with these two sections, it is clear that they cannot also apply to a case in which there is no charge at all. Section 218 requires separate charges for each distinct offence. Sections 215, 216, 464 and 465 of the Code apply with equal force to every kind of departure from that part of Section 218, which requires a separate charge for each offence. Section 221(2) is only a corollary to . Section 221(1). But all these sections are governed by the overriding rule about prejudice mentioned in Sections 215, 216, 464 and 465 in one form or another.
13. Illegality or irregularity resulting in prejudice and failure of justice is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules, but could be said to be offending natural justice and not curable. A man must know what offence he is being tried for and he must be told in clear and unambiguous terms and it must all be explained to him, so that he really understands the accusations. Only in such cases, the question of curing the omission, irregularity or error will arise Willie Slaney v. State of Madhya Pradesh AIR 1956 SC 116 : (1956 Cri LJ 291). If in substance, though not in form, the accused was made to understand the real charge and no prejudice resulted, then no error, omission or irregularity on the charge will be material. If he is tried for one offence and convicted for an entirely different offence brought out during trial, for which he had no opportunity to defend himself, prejudice and failure of justice is patent.
14. Prosecution case is only that pursuant to a demand made by the appellant on 20-3-1985 to PW 1 for Rs. 200/- as motive or reward for passing indent in her favour, he received Rs. 150/- from her on 27-3-1985 as illegal gratification. That case is not only not proved, but also stands disproved. There is no evidence of such a demand or receipt of amount pursuant to such a demand for that purpose. Demand and receipt for that purpose stand disproved by the mere fact that PW 1 was asked to produce the records and the children for physical verification and she failed and that is the reason why indent was not passed. That fact acts as a motive for false implication as suggested by the defence and practically admitted by the Special Judge. Payment of Rs. l50/- on 27-3-1985 and its receipt by the appellant are admitted and proved. But the evidence is that it is a voluntary payment as donation to the Association, of which appellant is an officebearer entrusted with the charge of collection. He may or may not have demanded such a donation. There is no evidence for that. Neither the prosecution nor PW 1 is having a case that the appellant demanded Rs. 150/-and PW 1 paid the same by way of motive or reward for passing indent. Appellant was never asked to answer the charge that he . demanded and received donation for the Association as motive or reward for passing indent and it is penal. Practically he is convicted solely on his admission for an act, for which there is no charge. His action may or may not be penal. Matter does not come under Sections 221 or 222 of the Code. In order to convict him for having received donation for the Association, there must be a charge that he demanded and received amount for that purpose by way of motive or reward. When there is no such case, conviction is illegal. What is involved is not an error, omission or irregularity which is curable or an instance coming under Sections 221 or 222 of the Code. Accused was, in fact, misled and failure of justice resulted by the conviction.
Criminal appeal is allowed. Conviction and sentence are set aside. Appellant is acquitted and set at liberty, after cancellation of his bail bonds.