SHAJI E Vs. STATE OF KERALA

JUDGEMENT

(1.) The Enquiry Commissioner & special Judge, Thiruvananthapuram, in C.C. No. 7 of 2002 convicted the appellant for offences under Section 7 and 13(2) r/w 13(1) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') and sentenced to rigorous imprisonment for one year on each count with a fine of Rs. 3,000/- and Rs. 5,000/- tinder Section 7 and 13(2) r/w Section 13(1)(d) respectively. Assailing the above conviction and sentence, this appeal is preferred. PW. 1 Jimmy John belongs to Fishermen community. In 2001, he was studying in ITI Chandanathopu. He was entitled to stipend as the son of a fisherman. The appellant, who was an employee in the Kerala Legislative Secretariat, was working as Fisheries Officer in the Office of the Fishermen Welfare Fund Board, Padappakkara, at Mukkada, in Kollam District, on deputation basis. PW. 1 obtained an application form to apply for stipend. It contained an inner form for certifying the community of the applicant. It was sent to the appellant, who had to certify that PW. 1 is the son of a fisherman, through PW. 2, the sister of PW. 1 on 15.1.2001. The father of the appellant John Bosco died on 26.8.2000. He was a member of the Fishermen Welfare Fund. The bereaved members of the family of the fisherman are entitled to a solatium amounting to Rs. 5,000/- PW. 3, the mother of PW. 1 applied for the same and a cheque for Rs. 5,000/- was released on 6.1.2001 by the appellant At the time of delivering the cheque, the appellant demanded a sum of Rs. 500/- But PW. 3 did not heed. When PW. 2 requested for the certificate, according to the prosecution, the appellant demanded Rs. 500/- and stated that unless the payment is made, the certificate would not be issued. On 17.1.2001, PW. 1 along with PW. 3 went to the appellant The appellant repeated his demand and sent them without issuing the certificate. Being got aggrieved. PW. 1 went to PW. 8. the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kollam and lodged Ext. Ext. P1 First Information Statement on the basis of which a case as Crime No. 1/2001 for offence under Section 7 of the PC Act was registered. PW. 8 made arrangements for the trap. M.O. 1, series, five 100 rupee currency notes brought by PW. 1 were seized by PW. 8 It was smeared with Phenolphthalein powder and gave back to PW. 1 with instruction to pay the same only on demand PW. 8 along with the independent witnesses and trap party proceeded to the office of the appellant. PW. 7, the then Deputy Registrar of Co-operative Societies, whose presence was procured by PW. 8 to witness the trap, was sent along with PW. 1 as a shadow witness. At about 5 p.m., when PW. 1 gave Ext. P3 application for issuing the certificate, the appellant repeated the demand pursuant to which PW. 1 paid M.O. 1 series to the appellant It was accepted by the appellant and put it into the drawer of the table. As instructed earlier, PW. 1 conveyed signal. Getting the signal, PW. 8 rushed to the appellant, caught red handed and M.O. 1 series were recovered for which separate Mahazar was prepared. PW. 8 took over the investigation which was later taken over by PW. 9, who, after obtaining sanction under Section 19. submitted the final report before the trial court.

(2.) The learned Judge took cognizance and issued process, responding to which the appellant appeared. Copy of the final report with connected records were furnished. Either side was heard. On finding that there are materials to send the appellant for trial, a charge for the said offences was framed to which the appellant pleaded not guilty when read over and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PW s 1 to 9 were examined and Exts. P1 to P21 were marked. M.Os. 1 to 6 were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence against him. He did not put up a specific defence. Though he stated that he had been filing a separate statement, no such statement was filed. One witness was examined as DW. 1. The learned Special Judge, on appraisal of the evidence, arrived at a finding against the appellant consequent to which the appellant was convicted and sentenced as above.

(3.) The feet that the appellant was working as Fisheries Officer and in that capacity he was a public servant coming under Section 2(c) of the PC Act is not at all disputed. It was proved by the testimony of PW s 1 to 3. PW. 6, the Regional Executive Officer of the Fisherman Welfare Fund Board, Regional Office, Thiruvananthapuram, had also given evidence to that effect. Ext. P6 is the appointment order. Ext. P7 is the charge report. The above evidence of PW s 1, 2, 3 and 6 supported by Exts. P6 and P7 was not at all assailed. The learned counsel for the appellant fairly conceded that the appellant was working as Fisheries Officer at the alleged time and in that capacity he was a public servant coming under Section 2(c) of the PC Act. In the above circurnstances, I concur with the trial court and find that the appellant was a public servant as on 19.1.2001 as alleged by the prosecution. The evidence of PW. 5, the then Legislative Secretary would show that he was the authority competent to remove the appellant from the office and that PW. 5 got the case records. After verifying the records, he issued Ext. P5 order according sanction to prosecute the appellant. That order of PW. 5 was also not assailed by the appellant. I find no ground to reject that evidence. Basing upon such evidence, I further find that the appellant was prosecuted with due sanction.