Madras High Court

Agalya vs The State Rep. By on 22 October, 2024

Author: N.Seshasayee

Bench: N.Seshasayee

                                                                              CRLA.Nos.94 and 118 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated : 22.10.2024

                                      CORAM : MR.JUSTICE N.SESHASAYEE

                                            Crl.A.Nos.94 and 118 of 2018

                1.Agalya
                2.Selvarani
                3.E.Manohar                                      ... Appellants in Crl.A.94/2018


                S.Annadurai                                      ... Appellant in Crl.A.118/2018


                                                        Vs.

                The State rep. by
                The Inspector of Police
                Vigilance and Anti-Corruption
                Salem
                Crime No.14/AC/2002                                   ... Respondent in both Crl.As.



                Prayer in Crl.A.No.94 of 2018: Criminal Appeal is filed under Section 374(2)
                Cr.P.C., to call for entire records in Spl,C.C.No.40 of 2014 on the file of the
                learned Special Judge (Special Court for Trial of Cases under the Prevention of
                Corruption Act), Salem and set aside the Judgment dated 30.01.2018 imposed
                on the appellants / accused Nos.2, 4 and 5 in Spl.C.C.No.40 of 2014 by the
                learned Special Judge (Special Court for trial of cases under the Prevention of
                Corruption Act), Salem and acquit the appellants from all the charges.


                Prayer in Crl.A.No.118 of 2018: Criminal Appeal is filed under Section 374(2)

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                Cr.P.C., to admit the above appeal and set aside the conviction and sentence
                imposed on the appellant by the judgment dated 30.01.2018 passed in
                Spl.C.C.No.40 of 2014 on the file of the learned Special Judge (Special Court
                for Trial of Cases under the Prevention of Corruption Act), Salem by allowing
                the present appeal filed before this Court.


                                  For Appellants          : Mr.A.Ramesh
                                  in Crl.A.94/2018          Senior counsel for M/s.G.Pugazhenthi

                                  For Appellant           : M/s.P.Rajavel & C.Mahendran

                                  For Respondent :         Dr.C.E.Pratap
                                  in both Crl.As.          Government Advocate (Crl. Side)

                                                      COMMON JUDGMENT

This batch of two appeals is preferred by A1 (Crl.A.No.118 of 2018) and A2,

A4 and A5 (Crl.A.No.94 of 2018), challenging their respective conviction as

well as the sentence imposed on them by the trial Court. The details are as

below:

Accused Conviction and sentence imposed A1 (Appellant in Crl.A.No.118 of 2018) 1 year R.I. for offence U/s.167 r/w 109 for offences U/s.7 of P.C. Act, U/s.109 IPC and fine of Rs.1,000/- in default, 1 r/w 167, 467, 468, 471, 420 IPC & month S.I. Section 13(2) r/w 13(1)(d) of P.C. Act.

2 years R.I. each for offences U/s.420, 467, 468, 471 IPC along with fine of Rs.2,000/- in default 3 months S.I. for each offence

A2, A4 and A5 (Appellants in 1 year R.I. for offence U/s.167 r/w 109

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Accused Conviction and sentence imposed Crl.A.No.94 of 2018) for offences U/s.109 I.P.C. and Rs.1,000/- fine. r/w 167, 467, 468, 471, 420 r/w Section 13(2) r/w 13(1)(d) of P.C.Act 2 years R.I. for offence U/s.420 r/w 109 I.P.C. and Rs.2,000/- fine and in default 3 months S.I.

2 years R.I. for offence U/s.467 r/w 109 I.P.C. and Rs.2,000/- fine and in default 3 months S.I.

2 years R.I. for offence U/s.468 r/w 109 I.P.C. and Rs.2,000/- fine and in default 3 months S.I.

2 years R.I. for offence U/s.471 r/w 109 I.P.C. and Rs.2,000/- fine in default 3 months S.I.

2.1 The case of the prosecution is as below:

a) A2's father was working as a Primary school teacher in a primary school

run by Thodavur West Panchayat Union and he passed away. A2 is his

daughter and she had passed her XII Standard. She applied for a

compassionate appointment in the said school.

b) To secure her appointment, she approached PW5, the Tahsildhar

concerned, to issue few certificates. The Tahsildhar after enquiry at his

level had issued the following five certificates and they are as below:

                                  Exhibit                             Certificate issued
                          Ext.P4               Certificate that A4, the widow of the deceased and mother of
                                               A2 was not remarried.
                          Ext.P5               Certificate that A2 is unmarried.


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                                  Exhibit                          Certificate issued
                          Ext.P6            Certificate that the deceased did not posses properties.
                          Ext.P7            Certificate that there are no other working member in the
                                            family of the deceased.
                          Ext.P8            Certificate that A2 is in below poverty line.

c) Acting on the said certificates, A2 was issued Ext.P12 - Appointment

order.

d) The accusation of the prosecution is that A2, the daughter of the deceased

was married to PW14 at the relevant time and in terms of the applicable

rules, a married daughter would not be eligible to obtain compassionate

appointment. A1 to A6 have joined to fabricate false forged documents

to secure an appointment for A2.

2.2 On receipt of the appointment order, A2 presented the same before PW12,

the Head Master of the school. When PW12 inquired A2 if she was married,

the latter replied that she had. Therefore, PW12 informed A6, the District

Educational Officer about it and did not permit her to join duty.

2.3 Subsequently, Both A2 and her mother A4 filed ExtP14 and Ext.P15,

separate affidavits examined by PW11, Notary, wherein A2 has averred that

she is not living with her husband as her husband deserted her. In essence, she

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CRLA.Nos.94 and 118 of 2018

claims herself to be a destitute. She gives these certificates to A6, the District

Educational Officer, acting on which, the District Educational Officer issued

Ext.P19, appointment order, directing A2 to join duty as a school teacher in

some other school.

2.4 On a random verification, PW26 felt there was some irregularity which is

blended with criminality and initiated suo motu action. On the above narration

of facts, the prosecution proceeds that A1, the Village Administrative Officer

and A3, the Revenue Inspector concerned in the said village have written

recommendation to the Tahsildhar to issue Ext.P4 to Ext.P8 certificates.

Inasmuch as they have given a false certificate that A2 was not married, a case

came to be registered against them.

3. PW26, on investigation laid the charge sheet. Based on the same, charges

were framed as below:

                                      Accused                       charges framed
                         A1 - VAO                      U/s.7 of P.C. Act, U/s.167, 467, 468, 471,
                                                       420 IPC & Section 13(2) r/w 13(1)(d) of
                                                       P.C. Act.
                         A3 - Revenue Inspector        Sections 167, 467, 468, 471, 420 I.P.C. and
                                                       Section 13(2) r/w 13(1)(d) of P.C.Act.
                         A2, A4, and A5                U/s.109 r/w 167, 467, 468, 471, 420 r/w
                                                       Section 13(2) r/w 13(1)(d) of P.C.Act
                         A6                            Sections 471 r/w 467, 468 & Sections 468,

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                                     Accused                           charges framed
                                                          420 r/w Section 13(2) r/w 13(1)(c) of P.C.
                                                          Act.

4.1 Before trial A3 passed away and the charges framed against him got abated.

However, the trial Court did not re-arrange the ranks of the accused persons and

proceeded to try A1, A2, A4, A5 and A6 for the charges that it has framed

against them. During trial, the prosecution examined PW1 to PW26, marked

Ext.P1 to Ext.P34.

4.2. On appreciating the evidence, the Court found that A3 was a kingpin

behind the crime committed, but proceeded to convict A1, A2, A4 and A5 for

the charges framed against them and it acquitted A6, the District Educational

Officer.

5.These appeals are now under challenge.

6.Mr.A.Ramesh, the learned Senior Counsel for A2, A4 and A5 and

Mr.P.Rajavel, the learned counsel for A1 made the following submissions:

(a) If the case of the prosecution is scanned for material particulars which

according to the prosecution would constitute the offences that it alleges,

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CRLA.Nos.94 and 118 of 2018

then it will disclose that Ext.P19, the appointment order was not issued

based on any of the certificates that PW5 had issued but based on the

recommendation of A1, the Village Administrative Officer and A3, the

Revenue Inspector.

(b) Secondly, Ext.P19 was issued by A6 acting on Ext.P14 and Ext.P15

affidavits, filed by A2 and A4. However, the charges were framed based

on the recommendations of A1 and A3 and tagging A2, A4 and A5 to

these recommendations has zero relevance in the context of the crime

alleged.

(c) So far as Ext.P14 and Ext.P15 affidavits are concerned, while the

deponents of these affidavits viz. A2 and A4 averred that PW14, the

husband of A2 had deserted her, PW14, whom the prosecution relies on

to prove the charges, deposes that there was a living in arrangement with

A2 and he had left her. Even though prosecution has declared PW14

hostile and cross examined him, except suggesting an unsigned 161(3)

statement, it has done precious little to establish that the statement which

A2 and A4 had made in their respective Ext.P14 and Ext.P15 affidavits

are false. At any rate, no charge is framed vis-a-vis Ext.P14 and Ext.P15.

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7.Before delving on the merit of submissions made on either side, this Court

needs to record that the trial Court judgment vis-a-vis A3 is plainly bad and not

approvable in law. Here is a man against whom charges were framed, but he did

not live to defend the charges during trial. The charges are abated against him

and the trial Court went wrong in entering findings against a dead man.

8.Refuting the submissions of the learned counsel for the appellants,

Dr.C.E.Pratap, the learned Government Advocate (Crl. Side) submitted that A2

had not disputed the fact that she indeed had informed the Head Master of the

Gopalapuram school that she was married. When she was married even

according to her own statement, then the Revenue Inspector in his field enquiry

would have known it, but both A3, the Revenue Inspector and A1, the Village

Administrative Officer, colluded to fabricate documents, and acting on which

PW5 had issued certificates. But for the alertness or the alacrity of the Head

Master of the Gopalapuram school, fabrication of the documents would have

been suppressed. He submitted that appointment on compassionate basis is a

benevolence which is extended to the family of the Government servants who

die in harness or any such servants of any institution which assumes the

character of instrumentalities of the State, though the Rules may vary as

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CRLA.Nos.94 and 118 of 2018

between them. Extending this benevolence is circumscribed by multiple

conditions and any fraud played there will hijack the benevolence which

otherwise will be available to other eligible candidates.

9.Rival Submissions are carefully weighed. This Court may have to state that

the submissions made by the learned Prosecutor carry an overwhelming dose of

sentiments. This Court agrees with the learned prosecutor that any benevolence

which the State extends shall go to the right candidate and there can never be

any attempt to pilferage such benefits by anyone who is not eligible to be

benefited under the scheme. However, this Court deals with the issue whether

the appellants before this Court have committed the crime as alleged by the

prosecution where the evidence on record would be its only guide to its

conclusion.

10.There are two important facts:

a) A certificate was issued by PW5 based on a recommendation of A1 and

A3 that A2 was not married. Notwithstanding the fact that PW14 has

turned hostile, the fact remains A2 attempted to secure a job based on the

certificate issued by PW5 at the first instance, but eventually got an

appointment not based on the certificate issued by PW5 but on the

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CRLA.Nos.94 and 118 of 2018

strength of an affidavit that she had filed before A6. Therefore, the job

was secured not on the strength of the certificate issued, but on the

strength of the affidavit which A2 had filed.

b) There is nothing to connect the certificate issued by PW5 and the

appointment order issued by A6, for the latter had relied only on the

affidavits given by A2 and A4, and there is no charge against the

appellants A2 and A4 that the affidavits filed by them were false and they

have secured a job on the strength of the false affidavits.

11. In the result, these Criminal Appeals stand allowed. The conviction and

sentence imposed on the appellants in Spl.C.C.No.40 of 2014 on the file of the

learned Special Judge (Special Court for Trial of Cases under the Prevention of

Corruption Act), Salem is set aside. The appellants are acquitted from all the

charges framed against them. Fine amounts if it had been paid by the appellants

are directed to be refunded. No costs.

22.10.2024 kas

Index : yes / no Neutral Citation

To.

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CRLA.Nos.94 and 118 of 2018

1.The Inspector of Police Vigilance and Anti-Corruption Salem