SathyaDevan SomabHAVANam v State of Kerala

Crl.Appeal No.2489/2007 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** ## **CRL.A.No.2489 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CC 70/2000 DATED 20-11-2007 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM** ## **APPELLANT/1st ACCUSED:** **SATHYADEVAN SOMABHAVANAM, MANAPPALLY VADAKKU, THAZHAVA P.O., KARUNAGAPPALLY.** **BY ADVS. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SMT.K.SUNITHA VINOD** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, HIGH COURT BUILDING, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.A.RAJESH** **OTHER PRESENT:** **SPL.PP SRI.A RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-102020, THE COURT ON 03-11-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.2489/2007 2 ## **JUDGMENT** ## **Dated this the 3rd day of November 2020** First accused in C.C.No.70 of 2000 of the Enquiry Commissioner and Special Judge, Thiruvananthapuram stood charged for offences punishable under sections 13(2) r/w 13(1)(d) and Section 15 of the Prevention of Corruption Act, 1988 and Sections 5(2) r/w 5(1)(d) and 5(3A) of the PC Act, 1947 and sections 468, 471, 420 and 120B of the IPC along with accused Nos.2 to 5 who are the appellants therein. 2. First appellant was the former President of one Thazhava Panchayath Development Society and registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, hereinafter referred as the 'TC Act'. Second and fifth accused were the former Village Industries Officers of the Kerala Khadi & Village Industries Board, Kollam and third and fourth accused were the former Co-operative inspectors of the above Board. Prosecution alleged that, appellant, after constituting the above sham society, posed himself as its President and fabricated records and various documents by forging the signatures of persons shown as Director Board Members of the said society, with the ulterior motive of obtaining undue pecuniary advantage and submitted applications in the name of the society before the Kerala Khadi Village Industries Board to avail loans and grant on the pretext of starting a washing soap manufacturing unit. It was further alleged that, he entered into Crl.Appeal No.2489/2007 3 a criminal conspiracy with accused Nos.2 to 5 who were the officers of the above Board, who abused their position as public servants prepared false reports, utilization certificates, check lists etc., to make it appear that the loan applications filed by the society were genuine and recommended loans and grants to the society. They allegedly enabled the first accused to obtain pecuniary advantage to the extent of Rs.1,66,000/- as loan and Rs.3,000/- as grant during the period 30.11.1983 to 31.12.1990. 3. On the basis of the complaint laid, crime was registered as Crime No.3/97 of VACB, Kollam Unit. After investigation, final report was laid. All the accused appeared and contested the proceedings. On the side of the prosecution, PWs.1 to 29 were examined and Exts.P1 to P32 were marked. On the side of the accused, there was no oral evidence, but, Exts.D1 to D9 were marked. Court below, on the basis of the available materials, found the first accused guilty of all the offences alleged against him, convicted and sentenced him to undergo RI for a term of one year each for each of the offences found under section 13(2) r/w 13(1)(d) of PC Act, 1988 and section 5(2) r/w 5(1)(d) of PC Act, 1947 and sections 468, 471 and 420 of the Indian Penal Code. It was further provided that the above sentences shall run concurrently. The Court also found that, accused Nos.2 to 5 have not committed any offence and they were acquitted. The Court also found that, section 120B of the IPC was not established by the prosecution. Crl.Appeal No.2489/2007 4 4. Aggrieved by the above conviction and sentence, first accused has preferred this appeal. Heard the learned counsel for the appellant and learned Special Government Pleader for the Vigilance department. 5. Court below initially considered the question of sanction. It was found that, at the time of laying of charge, accused Nos.2 and 5 have retired and hence no sanction was required. Accused Nos.3 and 4 were in service. PW20 Secretary of the Board was examined who proved Ext.P22 sanction. On an evaluation of the available materials, Court held that, prosecution had established valid sanction in relation to Accused Nos.3 and 4 who were public servants. Court thereafter proceeded to analyze the evidence laid by the prosecution. It was found that, accused Nos.2 to 5 were not guilty and section 120B of the IPC was not established. However, Court found that the first accused had independently committed the offences. After holding so, Court proceeded to consider whether without aid of section 120B of the IPC, first accused can be held liable for offences punishable under the Prevention of Corruption Act. 6. Court below held that the first accused was the President of the society registered under the TC Act. He was invested with a public duty and thereby fell within the jurisdiction of section 2(b) of the PC Act, 1988. Consequently, it was held that, he was a person coming within the definition of section 2(c)(viii) of that Act. Since he was a public servant during the relevant period, Crl.Appeal No.2489/2007 5 penal provisions contained in the PC Act could be legally charged against him. Court justified that, since by corrupt or illegal means, he had obtained pecuniary advantage during the period 1985 to 1990, he had committed the offences charged under the PC Act. Court also opined that, they were criminal acts constituting offences which were continuous so as to form a single offence. 7. Thereafter, Court proceeded to consider whether first accused can be prosecuted for those offences without sanction under section 19 of the PC Act. Court held that, since he was the President of a registered society, there was no authority competent to give sanction. To support this, Court relied on the decision reported in **Francis v. Johny Chandy (2000(2) KLJ 137).** The reasoning in that decision was that, there was no sanctioning authority as far as the President of a Co-operative Society was concerned and hence no sanction was required for prosecution. Hence, Court concluded that, appellant could be prosecuted for the offence committed by him in the PC Act. Thereafter, sentence was imposed on him accordingly. 8. Learned counsel for the appellant, without delving into the merits of the case challenged the conviction and sentence based on two legal contentions. Firstly, he challenged the finding of the court below that, being the President of the registered society, there was no authority to sanction or prosecute the appellant and consequently, sanction was not required. Next contention was that, conviction under sections 468, 471 and 120B Crl.Appeal No.2489/2007 6 IPC were not sustainable since no specific charge under those IPC offences were framed against the appellant at trial and in the questioning under section 313 Cr.P.C, incriminating circumstances under the above IPC offences were not specifically put to the above accused. 9. Court below after finding that the petitioner was invested with public duty under section 2(b) of the PC Act held that being a public servant under section 2(c)(viii) as defined under the PC Act, he could be prosecuted as a public servant under the PC Act. Regarding the question of sanction, the Court held that, being the President of the Society, there was no authority competent to sanction his prosecution and hence in the light of judgment in **Francis** 's case (supra) sanction was not required. In the above decision, learned single Judge of this Court had considered the question of sanction in relation to the President of a Co-operative Society. The Judge noticed that under the Co-operative Societies Act, no authority is competent to remove the President of a Cooperative society and hence, for prosecuting him, sanction was not required. 10. The above finding was assailed by the learned counsel for the appellant on the premise that, court below went wrong in not noticing that the society was one registered under the TC Act. Learned counsel invited my attention to section 20 of the above Act. It provided that the State Government may fine any member of the governing body or servant of the society who willfully or Crl.Appeal No.2489/2007 7 contumaciously disobeyed any order passed by the Government under section 19 of the TC Act. If the said member or servant failed to carry out the said order in the stipulated time, State Government was authorized to dismiss it. The governing body of the society was bound to give effect to the order passed by the State Government. According to the learned counsel for the appellant, this being the provision, President is removable by the Government being a member of the governing body, by invoking section 20 of the TC Act. 11. It is true that the above power under section 20 of the TC Act can be exercised only in a limited contingency as contemplated under the said provision. In that specific circumstance alone, that power can be exercised by the Government; still, he is removable by the Government under the TC Act. There is no dispute that the society is registered under the TC Act and hence, the above provision is applicable. Further, prosecution has no case that the accused is neither a governing body member nor a servant under section 20 of the Act. Hence, there is considerable force in the contention of the learned counsel for the appellant that, sanction was not obtained from the sanctioning authority and hence, prosecution is bad. 12. The next specific contention of the learned counsel for the appellant was that, no specific charge was framed against the accused in relation to the offences attributed against him under sections 468, 471 and 120B of the IPC. Crl.Appeal No.2489/2007 8 13. I have perused the court charge framed by the trial court. 6 charges were framed by the court below. The first charge relates to constitution of a sham society and that first accused after forging records and forging signatures of Director Board Members entered into conspiracy with accused Nos.2 to 5 and committed various offences under the PC Act and offences under sections 468, 471 and 420 IPC. In that charge, details of commission of offences are not specifically mentioned and all the offences attributed to the accused are clubbed together. Charges 2 to 4 relate to offences under the PC Act. Charge 5 relate to creation of false documents by the first accused in the name of Director Board Members and submitted it through accused Nos.2 to 5 and that, thereby all accused are stated to have committed offences under section 468 r/w 120 IPC. Charge 6 relates to use of forged documents for undue advantage and thereby all commit ted offence under section 471 r/w 120A IPC. Though separate charges for offences under sections 468 and 471 IPC were attributed, all are allegedly committed in combination with other accused. Though, vaguely, the ingredients of IPC offences are alleged, no specific offence is attributed to the accused under the PC Act. Further, in the detailed questioning under section 313 Cr.P.C, specific incriminating circumstances constituting individual offences punishable under IPC are not seen put to the first accused. 14. Learned Special Government Pleader, to salvage the Crl.Appeal No.2489/2007 9 above position, relied on the decisions reported in **State of Madhya Pradesh v. Veereshwar Rao Agnihotri (AIR 1957 SC** **592 (Vol.44 C 87 Aug.)** and **Essar Teleholdings Ltd. v. Registrar General, Delhi High Court & Ors. (AIR 2013 SC 2300).** In **State of Madhya Pradesh's** case(supra) question was, when there was one trial for several offences, of some of which the accused person was acquitted for one, whether they can be convicted for another. It was held that when accused was tried under section 5(2) of the PC Act and section 409 IPC, but was acquitted of offence under the PC Act, there was no bar to his conviction under section 409 IPC. In **Essar Teleholdings Ltd.** 's case (supra) regarding the offences attributed under the PC Act, it was held that, under section 220 Cr.P.C, petitioners though accused of different offences under the IPC alone but alleged to have been committed along with other accused, alleged to have committed offences under the PC Act also in the course of 2G Spectrum transactions, they may be charged and can be tried together with the other co-accused, in the specific case for which Special Court was constituted. I am of the view that, both the decisions do not directly answer the questions arising in this appeal. In the light of above findings, I feel that, no purpose will be served by going into the merits of the case. Having considered this, on the above points itself, conviction and sentence Crl.Appeal No.2489/2007 10 entered into by the court below is bad and hence stands set aside. Accused is acquitted. Bail bond executed by him stands discharged. **Sd/SUNIL THOMAS JUDGE** **==> picture [29 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> sbna<br>**----- End of picture text -----**<br>