Back
2018 Supreme(Mad) 1097
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Ravikumar - Appellant
Versus
State rep. by the Inspector of Police, Vigilance & Anti-Corruption, Puducherry, Through Public Prosecutor - Respondents
Criminal Appeal No. 493 of 2014
Decided On : 02-04-2018
Subject
Criminal Law - Corruption
Act Referred
INDIAN PENAL CODE : S.420, S.468
PREVENTION OF CORRUPTION ACT : S.13(1)(d), S.13(2), S.19(1), S.3, S.3(1), S.4
Headnote
Prevention of Corruption Act, 1988 – Section 13 – Penal Code, 1860 – Sections 420, 468 – Application for allotment of stalls – Appeal is preferred against the judgment of conviction and sentence imposed by Special Judge at Puducherry in Spl.Calendar Case – One Muthukrishnan in the month of January, 1998, when he went to Puducherry Municipality for knitting wire chairs, he came to understand about issuing of application for allotment of stalls by the Municipality and therefore, he went to Puducherry Municipality to buy the application. – There he met the accused herein. – He got three applications from the accused. – The accused gave his address to him and asked to meet him in that address. – On returning to his home, PW-2[Muthukrishnan] informed the matter and handed over the application forms to his brothers. – Since he and his brothers do not know as to how to fill up the application, he along with his brothers went to the accused house and the accused filled up the application. PW-2[Muthukrishnan] then went to Municipality to hand over his application where he met the accused. – Since the accused assured to hand over his application, PW-2[Muthukrishnan] handed over the application and returned to his home. – Thereupon, the Municipality sent communication to PW-2[Muthukrishnan] and his brother Sittrasan directing them to produce their original certificates for selection by bidding. – Then, he went to Municipality and produced his certificate for verification. – Held, Appellant had made them to believe that the shop No.5 is allotted to his brother-in-law Selvam and executed the agreements in his name and handover the key, after receiving Rs.23,000/-. – The possession of shop No.5 was with the appellant due to his official position as Octroi Barrier Officer in Revenue Section of Puducherry Municipality. – Instead of informing his authority that the allottee has neither occupied the premises nor paid the rent, the appellant had taken advantage of the situation and by abusing his official position in order to gain pecuniary advantage, he had induced PW-2 to part away the money, knowing fully well that he cannot have personal control over the shop No.5 and he cannot unofficially hand over the possession of Shop No.5 Muthaialpet Market to any third party without following the public auction procedure. – Even assuming that the prosecution has failed to prove Section 468 IPC by subjecting the documents for handwriting expert opinion, the charge of cheating both the Municipality as well as private individual is well proved. The said act is a misconduct of a public servant done by abusing his official position liable for offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. – Though the charge has not been specified under what head the misconduct falls, the narration of the facts as proved by the prosecution indicates that it falls under all the three categories viz., corrupt or illegal means, abusing his position as public servant for obtaining pecuniary advantage without any public interest. – While reversing the judgment of the trial Court, in sofar as the offence under Section 468 IPC, which is the third charge framed by the trial Court, the other three charges namely, Section 420IPC cheating the Municipality; Section 420 cheating the individual and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1998 misconduct of a public servant by obtaining pecuniary advantage of Rs.23,000/-, this Court confirms the finding of the trial Court. –Criminal Appeal Partly Allowed
For the Appellant : P.S. Ganesh
For the Respondent: D. Bharatha Chakravarthy, PP(Pondy)
1. This appeal is preferred against the judgment of conviction and sentence imposed by Special Judge at Puducherry in Spl.Calendar Case No.5 of 2008 dated 18.09.2014.
2. Brief facts of the prosecution case is that One Muthukrishnan in the month of January, 1998, when he went to Puducherry Municipality for knitting wire chairs, he came to understand about issuing of application for allotment of stalls by the Municipality and therefore, he went to Puducherry Municipality to buy the application. There he met the accused herein. He got three applications from the accused. The accused gave his address to him and asked to meet him in that address.
3. On returning to his home, PW-2[Muthukrishnan] informed the matter and handed over the application forms to his brothers. Since he and his brothers do not know as to how to fill up the application, he along with his brothers went to the accused house and the accused filled up the application. PW-2[Muthukrishnan] then went to Municipality to hand over his application where he met the accused. Since the accused assured to hand over his application, PW-2[Muthukrishnan] handed over the application and returned to his home. Thereupon, the Municipality sent communication to PW-2[Muthukrishnan] and his brother Sittrasan directing them to produce their original certificates for selection by bidding. Then, he went to Municipality and produced his certificate for verification.
4. Later, he and his brother received letter from the Municipality to participate in the bid. He participated in the bid under the handicap quota, whereas his brother participated in general category. No allotment was made either to him or his brother. In the first week of April, PW-2[Muthukrishnan] met the accused and at that time, he informed the accused about the non-allotment of stall to him. At that time, the accused informed him that his brother-in-law namely Selvam got a stall at Mudaliarpet Market, since Selvam is not able to run the stall, he can arrange to get the stall for Rs.25,000/-.
5. On 11.04.1998, PW-2[Muthukrishnan] and his brothers went to the accused and expressed about their willingness of taking the stall but expressed their inability to pay Rs.25,000/- for which the accused asked them to part with Rs.23,000/-. At that time, PW.2 had a sum of Rs.5,000/- and gave it to the accused. The accused executed a stamped receipt to PW2's uncle Mahalingam for allotment of his stall. The accused also insisted to pay the remaining amount by 20.05.1998. But PW-2 was not able to pay the agreed balance amount by that day. The accused came to his house and insisted for immediate payment. Also that if he fails to pay the balance amount immediately, he would give the stall to any body else.
6. On 14.08.1998, PW2 [Muthukrishnan] arranged Rs.10,000/- and handed over it to the accused. After receipt of the amount, the accused asked PW1 to get the key of stall No.5 from one Jayavel. Two days later, PW2 went there and received the key of the shop No.5. He paid Rs.8,000/- to the accused on 21.08.1998 and asked for the allotment, the accused said that Selvam was not available in station and once Selvam returns, the accused assured to execute the document.
7. To run a kerosene shop, PW2 approached the Civil Supplies Department for granting licence where he was asked to produce the sale deed executed by Selvam (allottee) to Mahalingam and also the document executed by the Government.
8. When PW-2 [Muthukrishnan] insisted the accused to hand over the original document, the accused did not hand over the original documents but was dragging the matter. Then, PW2 went to see the alleged Selvam at Ariyankuppam at No. 172, Mariamman Kovil Street. Whereas the said Selvam was not found there in that address and more over no such door number and house is in existence. Thereafter when PW2 went and asked the accused for the documents,
