K.Ramakrishnan vs The Additional Legal Advisor
2021 Latest Caselaw 2530 Ker

WP(C).No.24821 OF 2013(C)

                                 1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

     FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                     WP(C).No.24821 OF 2013(C)


PETITIONER:

              K.RAMAKRISHNAN
              MANAGING PARTNER,ENARC CONSULTANTS,ARCHITECTS AND
              ENGINEERS,M.G ROAD,THRISSUR

              BY ADV. SRI.K.M.SATHYANATHA MENON

RESPONDENTS/RESPONDENTS:

      1       THE ADDITIONAL LEGAL ADVISOR
              VIGILANCE AND ANTI CORRUPTION BUREAU,THRISSUR 680
              001

      2       STATE OF KERALA
              REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
              KERALA,ERNAKULAM 682 031

              R1-2 BY RI A RAJESH SPL PP VACB

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13-01-2021, THE COURT ON 22-01-2021 DELIVERED THE FOLLOWING:
                                                                    "C.R"

                       R. NARAYANA PISHARADI, J
            ----------------------------------------------------
                       W.P.(C).No.24821 of 2013
            -----------------------------------------------------
                      Dated this the 22nd day of January, 2021


                                   JUDGMENT

The writ petitioner is Accused No.13 in the case C.C.No.32/2003

pending in the Court of the Enquiry Commissioner and Special Judge,

Thrissur.

2. There are altogether 13 accused in the case. The offences

alleged against them are punishable under Sections 13(1)(c) and 13(1)

(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also

under Sections 409,471,477A and 120B of the Indian Penal Code.

3. Accused 1 to 11 were the office-bearers of the Indian Coffee

Board Workers Co-operative Society Limited No.4227 (hereinafter

referred to as 'the Society'). Accused No.12 is a contractor. Accused

No.13, the petitioner herein, was the Managing Partner of the

establishment by name M/s. Enarc Consultants, Architects and

Engineers.

WP(C).No.24821 OF 2013(C)

4. The final report against the accused was filed in the Special

Court by the Dy.S.P, Vigilance and Anti-Corruption Bureau (VACB),

Thrissur. The charge against the accused, as stated in the final report,

is that Accused 1 to 11 hatched a criminal conspiracy during the

period 1996-1998 with Accused Nos. 12 and 13 and pursuant to such

conspiracy, entrusted the construction work of the new restaurant

building of the Society and the renovation work of the existing

restaurant building of the Society to Accused Nos.12 and 13 and that

Accused 1 to 11, by abusing their position as public servants, caused

to get undue pecuniar advantage to Accused Nos.12 and 13 by paying

them higher rates and higher fees and thereby caused wrongful loss of

Rs.6,48,213/- to the Society.

5. The petitioner filed an application for discharge under Section 239

of the Code of Criminal Procedure, 1973 (for short 'the Code') in the trial

court. Learned Special Judge considered the aforesaid application

along with the applications for discharge filed by the other accused

persons. After considering the rival contentions of the parties, as per

Ext.P2 order, learned Special Judge dismissed the application for

discharge filed by the petitioner.

6. Accused No.13 has filed this writ petition, praying that

Ext.P2 order may be set aside and the application for discharge filed WP(C).No.24821 OF 2013(C)

by him in the trial court may be allowed.

7. Heard the learned counsel for the petitioner and also the

learned Public Prosecutor.

8. The petitioner has preferred to file a writ petition to

challenge the order of the trial court dismissing the application for

discharge filed by him. The writ petition contains a prayer for allowing

the application for discharge filed by him in the trial court. Even then,

the petitioner has not chosen to produce in the writ petition a copy of

the discharge application.

9. The only contention raised by the learned counsel for the

petitioner before this Court is that the Society is not one registered

under the Kerala Co-operative Societies Act and Accused 1 to 11 are

not public servants who come under the purview of Clause (ix) of

Section 2(c) of the Prevention of Corruption Act and therefore, the

offences alleged against the petitioner in relation to the acts allegedly

committed by Accused 1 to 11 will not stand against him.

10. Learned counsel for the petitioner has elaborated the

aforesaid contention by submitting that the Society is not receiving

and it has not received any financial aid from the Central Government

or the State Government or from any corporation established by or

under a Central, Provincial or State Act, or any authority or body WP(C).No.24821 OF 2013(C)

owned or controlled or aided by the Government. It is contended that

the office-bearers of such a society will not come under the definition

of 'public servant' given in Clause (ix) of Section 2(c) of the Prevention

of Corruption Act. Learned counsel has placed heavy reliance upon

the decision of this Court in India Coffee Board Workers Co-

operative Society Limited v. State of Kerala (ILR 2017 (3) Ker

480) in support of his contention.

11. Per contra, learned Public Prosecutor has pointed out that

the decision referred to above was rendered by this Court in the

context of Section 32 of the Kerala Co-operative Societies Act and it is

not relevant for the purpose of deciding whether the office-bearers of

the Society would come under the purview of the definition of 'public

servant' under Section 2(c)(ix) of the Prevention of Corruption Act,

1988. Learned Public Prosecutor has contended that the question

whether the Society has received any financial aid from the

Government is a matter to be dealt with during the course of the trial

of the case. Learned Public Prosecutor has relied upon the decision of

the Apex Court in State of Maharashtra v. Brijlal Sadasukh

Modani (AIR 2016 SC 1377) in support of his contention.

12. Section 2(c) of the Prevention of Corruption Act, 1988

defines 'public servant'. Clause (ix) of Section 2(c) of the Act reads as WP(C).No.24821 OF 2013(C)

follows:

"(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)".

13. On a perusal of the above provision, it is manifest that a

registered co-operative society must have received financial aid from

the Central Government or the State Government or any other

institution mentioned therein so as to treat any office-bearer of it a

'public servant' under the purview of the Prevention of Corruption Act,

1988.

14. The Society was initially registered as a Co-operative

Society under the provisions of the Travancore-Cochin Literary,

Scientific and Charitable Societies Registration Act, 1955. When the

Kerala Co-operative Societies Act, 1969 came into force, the Society

became statutorily reckoned as a deemed Co-operative Society under

the provisions of that Act. The Society is an Industrial Co-operative

Society which is under the administrative control of the Industries and WP(C).No.24821 OF 2013(C)

Commerce Department of the Government of Kerala. These facts

cannot be disputed in the light of the decision of this Court in India

Coffee Board (supra) which has been referred to by the learned

counsel for the petitioner.

15. The decision in India Coffee Board (supra) has been

relied upon by the learned counsel for the petitioner to contend that

the Society has not received any financial aid from the State

Government or any of the authorities mentioned under Section 2(c)

(ix) of the Prevention of Corruption Act, 1988.

16. The decision in India Coffee Board (supra) was rendered

in the context of Section 32 of the Kerala Co-operative Societies Act,

1969 which provides for supersession of the Managing Committee of a

society registered under that Act. The third proviso to Section 32 of

the Kerala Co-operative Societies Act, 1969, as it stood at that time,

prohibited supersession of the Managing Committee of a society by

the Registrar when there was no Government shareholding or loan or

financial assistance or any guarantee by the Government or any board

of institutions constituted by the Government in the society. In India

Coffee Board (supra), this Court negatived the contention of the

State that the Society had received financial aid and assistance as

contemplated under the third proviso to Section 32 of the Co- WP(C).No.24821 OF 2013(C)

operative Societies act.

17. The decision in India Coffee Board (supra) was rendered

by this Court on the basis of the pleadings and the records produced

by the parties in that case, that too, in the context of the proviso to

Section 32 of the Kerala Co-operative Societies Act, 1969. This

decision cannot be an authority to find that the Society has not

received any financial aid from the State Government. This decision

can be an authority only to find that the Society has not received any

loan or financial assistance from the State Government as

contemplated in the third proviso to Section 32 of the Kerala Co-

operative Societies Act, 1969. The decision in India Coffee Board

(supra) cannot be accepted as an authority to interpret the expression

''any financial aid" occurring in Clause (ix) of Section 2(c) of the

Prevention of Corruption Act, 1988.

18. In construing the definition of 'public servant' in Clause (c)

of Section 2 of the Prevention of Corruption Act, 1988, the court is

required to adopt a purposive approach as would give effect to the

intention of legislature. When the legislature has used a

comprehensive definition of 'public servant' to achieve the purpose of

punishing and curbing growing corruption in government and semi-

government departments, it would be appropriate not to limit the WP(C).No.24821 OF 2013(C)

contents of definition clause by construction which would be against

the spirit of the statute. The definition of 'public servant', therefore,

deserves a wide construction (See Govt. of A.P. v. P. Venku

Reddy : AIR 2002 SC 3346).

19. In Manish Trivedi v. State of Rajasthan : AIR 2014 SC

648, it has been held as follows:

"The present Act envisages widening of the scope of the definition of the expression 'public servant'. It was brought in force to purify public administration. The legislature has used a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute."

20. In State of Gujarat v. Mansukhbhai Kanjibhai Shah:

2020 SCC OnLine SC 412, the Apex Court has held as follows:

"On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of 'public servant' is provided thereunder".

WP(C).No.24821 OF 2013(C)

21. In Brijlal (supra), dealing with the provision contained in

Section 2(c)(ix) of the Prevention of Corruption Act, 1988, the Apex

Court has held as follows:

"In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term 'aid' has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of 'public servant'. The concept in entirety has to be understood in the backdrop of corruption".

The Apex Court has proceeded further and held as follows:

"Therefore, we are of the convinced opinion that it was entirely unnecessary on the part of the High Court to enter into elaborate deliberation to arrive at the conclusion that the respondent was not a public servant. Regard being had to the facts of the case, we think it would be apposite that it is left to be dealt with in the course of trial whether the society concerned has ever been granted any kind of aid or not".

(emphasis supplied)

22. In the light of the decision of the Apex Court in Brijlal

(supra), the contention of the learned counsel for the petitioner that

the Society has not received financial aid from the State Government

and therefore, the office-bearers of the Society do not come within WP(C).No.24821 OF 2013(C)

the purview of the definition of public servant under Section 2(c)(ix)

of the Prevention of Corruption Act, 1988 cannot be gone into in detail

at this stage. It is a matter to be dealt with in the course of the trial of

the case.

23. Learned counsel for the writ petitioner has not raised any

other contention before this Court in challenging Ext.P2 order passed

by the trial court.

24. The discussion above leads to the conclusion that the

question, whether the Society has received any financial aid from the

Government and for that reason whether Accused 1 to 11, the office-

bearers of the Society, are public servants or not, is to be dealt with

during the course of the trial of the case. The petitioner would be at

liberty to raise all his contentions in this regard at the appropriate

stage of the trial of the case.

25. Consequently, the writ petition fails and it is dismissed.

Interlocutory applications, if any, pending are closed. Interim order of

stay passed in the writ petition stands vacated.

Sd/-R. NARAYANA PISHARADI JUDGE lsn WP(C).No.24821 OF 2013(C)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CHARGE SHEET SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE,VIGILANCE AND ANTI CORRUPTION BUREAU BEFORE THE COURT OF ENQUIRY COMMISSION AND SPECIAL JUDGE,THRISSUR

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 22/07/2013 IN CRLMP NO 104/2010 FILED IN C.C NO 32/2003 ON THE FILES OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE THRISSUR

EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE CONTAINING RULE 16 OF THE LAW OF INDIAN COFFEE BOARD WORKERS COOPERATIVE SOCIETY,THRISSUR

EXHIBIT P4 TRUE COPY OF THE DOCUMENT NO K REFERRED IN THE ORDER IMPUGNED DATED 27-07-2002

EXHIBIT P5 TRUE COPY OF THE REPLY DATED 19-08-2008 OF THE SECRETARY,INDIA COFFEE BOARD WORKER'S CO-OPERATIVE SOCIETY

RESPONDENTS EXHIBITS: NIL

TRUE COPY

P.A TO JUDGE

LSN