S.JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred by the sole accused who stood trial in CC No.35/2002 of the Enquiry Commissioner and Special Judge, Thriuvananthapuram for offences punishable under section 13 (2) read with section 13 (1) (c) of the Prevention of Corruption Act (herein after referred to as " the PC Act ") of 1988 and Section 409 IPC.

(2.) The appellant was the elected representative of ward No. 9 of Thenmala Panchayath during the period from 1988 to 1995. He was selected as the convenor for carrying out three different development works in the Panchayath under the Jawahar Rozgar Yojana Scheme. They were 1).improvement of Nalpathamkutty - Kariyara road from 40th mile of QS to Kariyara Junction (hereinafter referred to as the disputed road) 2). Construction of three culverts in the above road and 3). Construction of two class rooms and a well for Ottakkal Welfare L.P.Schol. The estimated costs were Rs.86,583/-,Rs.1,05,000/- and Rs.78,000/- respectively. A total sum of Rs.64,500/- was released as advance to the accused by four cheques dated 21/3/1990, 30/3/1990, 31/3/1990 and 18/6/1990. He was also given 7,661.90 k.gs of rice valued at Rs.14,809/-. Thus total advance released was Rs.79,039/-. The work related to class rooms and well, was originally entrusted to PW5, another member of the Panchayat by named Celin Babu, who was also the then Vice President of the Panchayat. She had received Rs.15,000/- as advance. Since she did not complete the work, she was removed from the convernorship and the petitioner was entrusted with the work by resolution of the Panchayat dated 26/6/1990. Hence, PW5 paid Rs.12,770/- to the appellant and handed over the vouchers for the remaining amount of expenses incurred by her. The prosecution allegation was that thereafter the accused did not do the work nor did he repay the amount received as advance and misappropriated it by converting it for his own use. On the basis of the complaint received, crime was registered. After investigation, final report was laid, alleging that the appellant being a Panchayat member and hence a public servant committed various offences under the Prevention of Corruption Act . Since the accused had ceased to be a panchayat member at the time of filing the final report, sanction under the PC Act was not sought by the investigating agency.

(3.) Final report was taken on file by the Trial court and summons was issued to the accused. He appeared and denied the allegations. On the side of the prosecution, PW 1 to PW30 were examined and Exts.P1 to P53 were marked. On the side of the accused, DW1 to DW4 were examined. The court below, on the basis of the available materials, found the appellant guilty under section 13 (2) read with section 13 (1)(c) of PC Act , convicted and sentenced him to undergo RI for three years and to pay a fine of Rs.10,000/-. In default of fine, he was directed to undergo RI for six months. Regarding section 409 IPC, it was held that to invoke that provision, the accused should be a public servant as defined under section 21 of the IPC. Since the appellant did not fall within any of the category mentioned in Section 21 of the IPC, he was held to be not a public servant under the Act and hence section 409 IPC was found not applicable to the accused. However, the Court found that ingredients of a lesser offence of Section 406 IPC was available and being a lesser offence, the court below held that the accused was guilty of offence punishable under section 406 IPC, convicted him and sentenced him to undergo RI for one year and to pay a fine of Rs.5,000/- and in default, to undergo RI for three months. Aggrieved by the conviction and sentence, the accused has preferred this appeal.