P SUBBARAJ Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS petition is filed under Section 482 Code of Criminal Procedure to quash the proceedings in C.C. No. 5/88 pending on the file of the VII Additional Special Judge, Madras.

(2.) THE petitioner was working as Junior Accountant in the office of the Director of Accounts, Tamil Nadu Postal Circle, situated in Commander-in-Chief Road, Madras, and the respondent police has filed a charge-sheet against him for the offences under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of Indian Penal Code alleging that on or about 13-10-1987, he demanded and collected Rs. 500/- from one Natarajan as illegal gratification promising to secure a job for him at P.W.D. office at Vellore, by abusing his position as a public servant.

(3.) THE next decision relied upon by the petitioner is Ramakrishna Rao v. State, 1981 Mad LJ (Cri) 104. That was a case in which the accused, who was employed in Port Trust, collected money from the complainant promising him to secure job in some of the departments. THE Andhra Pradesh High Court in that case took the view that the accused who was working in the Port Trust promised to secure job in some other department and therefore he did not misuse his position as public servant but acted in his individual capacity and therefore Section 5(1)(d) of the Prevention of Corruption Act is not attracted. Similar view has been taken by this Court also in Balasubramaniam v. State, 1988 Mad LW (Crl) 400. THE accused, who was employed as Lower Division Clerk in State Insurance Corporation, was also acting as Secretary of the Employees' Cooperative Thrift Credit Society, which was an honorary post and he, along with the another Clerk, made false entries in the books of account of the society and misappropriated amounts to the tune of Rs. 18,000. Bellie, J., has observed : "3a. that the appellant accused did not commit the offence alleged as a public servant. He found that it is the case of the prosecution that he committed the alleged offences in respect of the funds of the society as a Secretary of the Society, which was an honorary post and he has not committed any offence in his capacity as an employee of the State Insurance Corporation and therefore he cannot be charged under Section 5(1)(c) and (d) of the Prevention of Corruption Act and under Section 409 Indian Penal Code. No appeal has been filed by the State against the acquittal of the accused under Section 5(1)(c) & (d) of the Prevention of Corruption Act and under Section 409 Indian Penal Code. THE said findings of the learned Special Judge is obsolutely correct. No doubt, the accused was an employee of the State Insurance Corporation and there he was a public servant. But he was not a public servant as a Secretary of the society. THE charge is that he committed the offence as Secretary of the Society and not as an employee of the State Insurance Corporation. It is argued that as per Bye-law of the society, only employee of the State Insurance Corporation can be a secretary. That may be so, but because of that the appellant-accused cannot be said to be, as a Secretary to the Society, a public servant. therefore, if really he has committed offences as alleged against him, he did it not in his capacity as a public servant. THE offence under Section 5(1)(c) & (d) of the Prevention of Corruption Act and under Section 409 Indian Penal Code, relate to only offences committed in the capacity as a public servant and not otherwise. THErefore, if the accused has committed any offence with regard to the funds of the society as a Secretary thereof, he cannot be said to have committed an offence under Section 5(1)(c) and (d) of the Prevention of Corruption Act or under Section 409, I.P.C. THErefore, rightly the learned Special Judge has acquitted the accused of the charges under Sections 5(1)(c) & (d) of the Prevention of Corruption Act and under Section 409, I.P.C.".