IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.02.2010 CORAM THE HONOURABLE MS. JUSTICE R. MALA CRL.A.NO.1777 OF 2002 Chinnamalli .. Appellant Vs Natarajan Vilage Administrative Officer. ..Respondent Prayer: Criminal appeal filed under Section 378 Cr..C. Against the judgment passed in C.C.No.21 of 1998 dated 18.07.2002 on the file of learned Judicial Magistrate IV, Tirupathhur , Vellore District acquitting the respondent nad praying to setaside the judgment . For Appellant : Mr. K. J. Senthilkumar For Respondent: Mr. Karthik for Mr.T.S. Gopalan. JUDGMENT
This Criminal appeal arises out of the judgment passed by Judicial Magistrate, Thirupathur, Vellore District on 18.7.2002 exonerating charges levelled against the accused under Sections 165A, 166, 167,170 IPC and acquitting the accused.
2. That the appellant herein filed a complaint stating that she is a legally wedded wife of one Chamudi and her marriage has been performed and registered on 5th June 1987 and they are having one Minor male child . The Government is granting family welfare fund for the poor people . Since the kartha of the family died and the appellant being a poor woman, she is entitled for the family welfare fund granted by the Government.
2. The accused is the village administrative Officer and he knows very well that the appellant and her son alone are entitled to the above said family welfare fund, but he falsely represented that one Rajammal is the wife of deceased Chamudi to the Tahsildar in favour of the above said Rajammal. So the appellant gave application before the sub collector, Thirupathur on 7.10.1996, but no action has been taken. Hence she come forward with this private complainant that the accused is liable to convicted under Sections 165 A, 166, 167, 170, 171 and 171B(ii) of IPC.
3. The learned Magistrate after recording sworn statement took cognizance against the accused under Sections 165 A, 166, 167 and 170 IPC. The learned Magistrate after following the procedure and examining the witnesses P.W.1 to P.W.6 and Ex.P1 to P6, exonerated the accused from the charges levelled against him under the Sections 165 A, 166, 167 and 170 IPC and acquitted the respondent.
4. The learned counsel appearing for the appellant would contend that the marriage between the complainant and the deceased Chamudi has been proved by way of marking Ex.A1 marriage invitation and Ex.A5 Marriage certificate. Her husband Chamudi was died. Since her husband was expired, she is entitled for the family welfare fund granted by Government for poor people, but false certificate has been issued in favour of one Rajammal facilitating her to receive family welfare fund. Hence the accused/respondent is guilty under the above said provisions.
5. At this juncture the learned counsel appearing for the respondent/accused would contend that the charge has been framed against this accused under Section 165 A which has been already repealed in pursuance of the amended act repealed by the Prevention of Corruption Act 1988. Since the alleged occurrence has been taken place after the year 1988, so the trial Court has committed error in taking cognizance of the accused under Section 165 A of the Act.
6. He further submitted that there is no evidence to show that accused is guilty under Sections 166, 167 and 170 of IPC. The learned Sessions Judge after considering all these aspects in a proper perspective, came to this correct conclusion. Hence he prayed for dismissal of this appeal.
7.It is appropriate to consider Sections 161,165 and 165 A of IPC which reads as follows:
“Section 161:Public servant taking gratification other than legal remuneration in respect of an official act. (Repealed by the Prevention of Corruption Act, 1988 (49 of 1988), section 31.)”
“Section 165: Public servant obtaining valuable thing, without consideration , from person concerned in proceeding or business transacted by such public servant. – {Repealed by the Prevention of Corruption Act, 1988 (49 of 1988), Section31)”
“Section 165-A: “Punishment for abetment of offences defined in Section 161 or Section 165. -[Repealed by the Prevention of Corruption Act, 1988 (49 of 1988), Section 31]”
While perusing these acts, Sections 161, 165 and 165(A)IPC were repealed by Prevention of Corruption Act 1988, so the trial court has committed error in taking cognizance under Section 165 A. The offence under Section 165 A has not been proved by the appellant herein. So the argument advanced by the learned counsel for the appellant that the respondent is guilty under Section 165 A IPC does not merit acceptance.
8. Now this court has to decide whether the respondent is guilty under Sections 166,167 and 170 IPC.
166. Public servant disobeying law, with intent to cause injury to any person
Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both
167. Public servant farming an incorrect document with intent to cause injury
Whoever, being a public servant, and being, as “such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record” in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
170. Personating a public servant
Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
9. Even though the complainant was examined herself as P.W.1,there is no evidence to show that the accused has furnished incorrect document with an intent to cause injury to this appellant from the evidence of P.W.2 to P.W.3 . A Junior Assistant working in Revenue Divisional Officer has been examined as P.W.2. Through her Ex.P.6 – voters list has been marked. But there is no evidence to show that this appellant is wife of Chamudi except Ex.P.1 and Ex.P.5. But further the name of Rajammal’s husband also Chamudi which was evidenced by Ex.P.6 voters list and P.W.2’s evidence. So it is appropriate to consider the arguments of the learned counsel for the respondent stating that as per the voters list, Serial No.1609 and 1607 is related to Rajammal and she was mentioned as wife of Chamudi. So there is no document to show that the appellant is the wife of Chamudi who died. But Rajammal wife of Chamudi alone has received that amount.
Moreover the appellant has not preferred any petition for applying family welfare funds to prove that the respondent herein has given a false certificate facilitating Rajammal to receive Family welfare fund. She has not filed any scrap of paper before this court. Per contra as per Ex.P.6 and P.W.2’s evidence, it is proved that Rajammal is the wife of Chamudi. The trial court in paragraph 17 of its judgment has considered the evidence of both sides and came to this conclusion that there is no evidence to show that the appellant herein has given application before this Tahsildar for obtaining family welfare fund and in paragraph 18 of its judgment, the trial court has considered the evidence and came to this conclusion that the appellant has not proved the ingredients of Sec.167 of IPC. So the trial court has considered all these aspects in a proper perspective and came to the correct conclusion that respondent is not guilty under Sections 165 A, 166, 167 and 170 IPC.
11. Therefore I do not find any irregularity or infirmity in the judgment passed by the trail court. So I concur with the findings of the trial court. Hence the appeal is liable to be dismissed. 12. In fine, the appeal is dismissed. The judgment of acquittal passed by the trial court is hereby confirmed. The respondent/accused is acquitted of the charges. msr To Judicial Magistrate IV, Thirupatthur