O P BALACHANDRA KAIMAL Vs. STATE OF KERALA, REPRESENTED BY SUPERINTENDENT OF POLICE HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) The Enquiry Commissioner and Special Judge, Kozhikode by judgment dated 26.8.2004 in C.C. No. 13/2000 on his file found the appellant guilty for offence under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act (hereinafter referred to as 'PC Act') and 409 IPC. Consequently, he was convicted and sentenced to simple imprisonment for one year and a fine of Rs. 10,000/- on each count with a default sentence of simple imprisonment for a further period of three months. Assailing the above conviction and sentence, this appeal was preferred. PW15, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Malappuram filed the charge sheet (final report) against the appellant alleging offences under Section 13(2) read with 13(1)(c) and 13(1)(d)of PC Act and Sections 409 and 477A IPC with an allegation that the appellant was working as a Mileage Officer in Velinyancode Village from 20.10.1989 to 10.8.1994 and that on 18.7.1994 when PW1, the then Revenue Inspector, inspected the office of the appellant it was noticed that the appellant had failed to remit Rs. 15,683/- collected by him towards basic tax, building tax, sales tax, amounts realised in revenue recovery proceedings etc. Ext. P2(a) is the report in Ext. P2 Inspection Register. The matter was reported to superior authorities. On 30.7.2004, PW1 again inspected. Then also it was found that there was failure to remit the amount. As on that date, there was a sum of Rs. 23,426/- to be remitted in Treasury. Ext. P3(a) is the report. In pursuance to that report, a complaint was lodged before the Perumbadappu Police Station, following which a case as Crime No. 64/94 was registered. Subsequently, the first information report and the connected records were forwarded to the Vigilance Police Station, Malappuram on the basis of which, PW14, then Deputy Superintendent of Police, re-registered a case as Crime No. 4/95 for which Ext. P18 First, Information Report for offence under Sections 409 and 403 IPC and Section 13(1)(c) read with 13(2) of the PC Act was prepared. PW14 took over the investigation. He was succeeded by PW15, who completed the investigation and laid the charge sheet before the learned Special Judge.

(2.) The learned Special Judge took cognizance and issued process responding to which the appellant entered appearance. After furnishing the copy of the final report and the connected records, either side was heard. On finding that there are materials to send the appellant for trial, charge for offence under Section 13(2) read with 13(1)(c) and 13(1)(d) of the PC Act and Sections 409 and 477 A IPC (was framed. The appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 15 were examined. Exts. P1 to P22 and X1 to X4 were 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 admitted his official status. The inspection by PW1 was also admitted. But he took a defence that there was no misappropriation or any irregularity. In a separate statement, it was stated that PW1 had not enquired about physical cash balance on 18.7.1994. He was not aware of the existence of any law or rule, which mandates the remittance of the revenue collection in Treasury on a particular day. But he had been remitting the revenue collection in Treasury as a precedent and on occasions, reasons beyond the control of the appellant, there was some delay. Though the appellant requested the Revenue Inspector and the Tahsildar to permit him to remit the amount, the Revenue Inspector stated that permission of the Tahsildar had to be obtained and the Tahsildar stated that permission of the Collector had to be obtained. Later, he fell ill and could not report for duty. Though he applied for leave, absence was recorded and he was reported absconding. Thereafter, as permitted by the District Collector, the amount was remitted in Treasury and there was no loss to the State at all. No defence evidence was let in. The learned Special Judge on appraisal of the evidence found against the appellant as stated earlier. Offences under Section 477A IPC and 13(2) read with 13(1)(d) were found not proved.

(3.) PW1 had deposed that during 1993-94, the appellant was working as Village Officer in Veliyancode Village Office. PW2, the successor of the appellant, PW7, a clerk attached to Ponnani Taluk Office and PW8, the Village Assistant also had given evidence that the appellant was working as Village Officer. Their evidence was not at all assailed in cross-examination. Not only the above evidence was not disputed but also the appellant admitted that he was working as Village Officer. In the above circumstance, I find that the lower court had, on appraisal of the above evidence, rightly arrived at a conclusion that the appellant was working as Village Officer in Veliyancode Village and as such he would be a Public Servant coming under Section 2(c) of the PC Act.