CRL.A No. 864 of 2009 against the judgment in CC No.32/2003 of Enquiry Commissioner & Special Judge, Kozhikode, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** **CRL.A NO. 864 OF 2009 AGAINST THE JUDGMENT IN CC NO.32/2003 OF ENQUIRY COOMMISSIONER & SPECIAL JUDGE, KOZHIKODE** ## **APPELLANT/ACCUSED NO.1:** DR.V.K.DEVAYANI W/O DR.K.GOPI, CHATHERAL HOUSE, THATTARAMBALAM, MAVELIKKARA POST, ALLEPPY, DISTRICT. BY ADV P.MAYA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SMT.S. REKHA SR.PP, SRI A. RAJESH – SPL.PP, VACB **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A No.864/2009** 2 ## **J U D G M E N T** Dated this the 27th day of June, 2023 This appeal has been preferred by the appellant/accused No.1 in C.C.No.32/2003 on the files of the Enquiry Commissioner and Special Judge, Kozhikode (for short 'the court below'), challenging the judgment dated 28/04/2009, convicting and sentencing her under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (for short, 'the PC Act'). 2. The appellant was working as Assistant Surgeon and the accused No.2 was working as Nursing Assistant at Community Health Centre, Nenmara. PW3 admittedly approached the appellant to terminate her pregnancy. The case of the prosecution is that, the appellant demanded and accepted a sum of ₹600/- as bribe from the defacto complainant/decoy through the accused No.2 towards the consideration for conducting medical termination of her pregnancy. 3. After trial, the court below found the appellant guilty. She was convicted and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹1,000/- each **CRL.A No.864/2009** 3 and in default to suffer rigorous imprisonment for six months each, under Sections 7 and 13(2) r/w Section 13(1)(d) of the PC Act. The court below found the accused No.2 not guilty and she was acquitted of all the offences charged against her. Challenging the said conviction and sentence, the appellant preferred this appeal. 4. I have heard Sri. P.Vijaya Bhanu, the learned Senior Counsel for the appellant and Sri. A.Rajesh, the learned Special Public Prosecutor for VACB. 5. The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the prosecution has miserably failed to prove that there was a demand for illegal gratification from the side of the appellant and in the absence of the same, the conviction is not sustainable. The learned counsel further submitted that there is no satisfactory evidence to prove the acceptance as well and the evidence of the prosecution witnesses especially that of PW1 and PW3 are full of contradictions and omissions. The learned counsel also submitted that the appellant was falsely implicated in a trap **CRL.A No.864/2009** 4 case due to political vengeance. 6. On the other hand, the learned Special Public Prosecutor for VACB supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 7. The prosecution mainly relied on the evidence of PW1, PW3, PW4 and PW8 to prove its case and to fix the culpability on the appellant. It is not in dispute that the appellant was working as the Assistant Surgeon at the Community Health Centre, Nenmara at the time of the alleged incident. It is also not in dispute that PW3 approached the appellant to terminate her pregnancy. In fact, the arrest of the appellant and the recovery of the tainted currency notes (MO1 and MO2 series) from the MO12 bag of the appellant have not been disputed. According to her, the MO1 and MO2 series currency notes were put in her bag by PW1/the defacto complainant when she left the bag at the nurses room and thus she was fixed in the trap. 8. PW1 is the decoy witness and the defacto complainant. The crime was registered on the basis of Ext.P1 complaint given by **CRL.A No.864/2009** 5 him. He is the husband of PW3. His evidence as well as the evidence of PW3 would show that on 07/04/2000 at 3.00 pm, they went to the residence of the appellant and consulted her for the purpose of terminating the pregnancy of PW3. The appellant prescribed certain medicines and asked PW3 to meet her again after ten days. Thereafter, PW1 and PW3 again went to the residence of the appellant on 17/04/2000 afternoon and met her. Both of them clearly deposed that after examining PW3 the appellant told them that MTP could be conducted after a week and asked them to come to Community Health Centre, Nenmara with ₹600/-. They further deposed that on 19/04/2000 again they went to the hospital and met the appellant and told her that the money was not ready. Then, the appellant asked them to come on 24/04/2000. According to them, on that day the appellant repeated the demand. Thereafter, PW1 reported the matter to Dy.S.P. attached to VACB, Kozhikode, who was examined as PW8. 9. PW8 then arranged a trap. Ext.P2 is the trap mahazar. The evidence of PW1 and PW8 would show that on 23/04/2000, PW1 went to the Vigilance Office, Palakkad and met PW8. On that **CRL.A No.864/2009** 6 day, he recorded the statement of PW1 and the crime was registered. The statement is Ext.P1. PW1 as instructed by PW8 produced three numbers of hundred rupee currency notes and six numbers of fifty rupee currency notes (MO1 and MO2 series). Their evidence would further show that then PW8 applied phenolphthalein powder on MO1 and MO2 series and the mahazar was prepared. Thereafter, PW8 kept MO1 and MO2 series in the pocket of PW1 and specific instruction was given to him that the tainted currency notes should be paid to the appellant on demand. Thereafter, PW1, PW8 along with police party and an independent witness who was examined as PW4 went to the Community Health Centre, Nenmara. They reached there at 12.00 noon. As instructed by PW8, PW1 and one of the policemen went to the hospital. PW3 and her mother had already reached the hospital as instructed by PW1. PW1 gave evidence that he met the appellant at the Nurses Duty Room and she told him to entrust the money to the accused No.2. Accordingly, he entrusted MO1 and MO2 series currency notes with the accused No.2 who agreed to hand over to the appellant. Thereafter, the accused No.2 went to meet the appellant. **CRL.A No.864/2009** 7 Having convinced that the accused No.2 had handed over the money to the appellant, he gave signal to PW8 as instructed. PW8 along with PW4 came to the hospital. At that time the appellant and the accused No.2 were inside the labour room. After 15 minutes the appellant came out of the labour room. PW1 pointed both the appellant and accused No.2 to PW8. PW1, PW4 as well as PW8 deposed that, then PW8 asked the appellant whether she received money from PW1. She answered in the negative. Then, PW8 asked the accused No.2, whether she received money. She answered in affirmative and said that she handed over the money to the appellant. Then, the appellant admitted that she received the money from the accused No.2 and kept it in her handbag, which was marked as MO12. Thereafter, CW4 as instructed by PW8 opened the MO12 bag and took MO1 and MO2 series currency notes. The evidence of PW4 and PW8 would show that when the MO1 and MO2 series currency notes were dipped in sodium carbonate solution, the colour change was noticed. Their evidence would further show that similar colour change was noticed when the fingers of the appellant as well as MO12 bag were dipped into **CRL.A No.864/2009** 8 the sodium carbonate solution. 10. Even though, PW1, PW3, PW4 and PW8 were crossexamined at length, nothing tangible could be extracted from their evidence to discredit their testimony. The learned counsel for the appellant invited my attention to certain contradictions in the evidence of PW1 and PW3. But, those contradictions are insignificant in nature and do not affect the fabric of the prosecution case. The learned counsel for the appellant vehemently argued that there is no clear evidence of demand and acceptance. The learned counsel relied on the following decisions of the Supreme Court to substantiate his arguments. (i) _**Soundarajan vs. State Rep.by the Inspector of Police Vigilance Anticorruption Dindigual**_ [2023 (3) Supreme 636] (ii) _**V.Sejappa vs. State**_ [AIR (2016) SC 2045], (iii) _**State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede**_ [ 2009 (15) SCC 200] and (iv) _**Rajesh Gupta vs. State through Central Bureau of Investigation**_ [2022 (2) SCR 864]. The dictum laid down in these decisions is that to attract Sections 7 as well as 13(1)(d) of the P.C.Act, the demand for gratification has to be proved by the prosecution beyond **CRL.A No.864/2009** 9 reasonable doubt and unless the foundation facts are proved, the presumption under Section 20 of the Act cannot be invoked. There is no quarrel about the said proposition. But it is equally settled that it is not necessary that there should be direct evidence in all cases to prove demand and acceptance. It can be proved by acceptable circumstantial evidence ( _**Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi**_ **)** [2022 (7) KHC 647]). The evidence of PW1 and PW3 would clearly prove that the accused demanded bribe of ₹600/from PW1 to conduct MTP of PW3 and thereafter they arranged a trap with the help of PW8 and they along with PW8 and PW4 went to the Community Health Centre, Nenmara and PW1 gave MO1 and MO2 series currency notes to the accused No.2 as instructed by the appellant who accepted it. The learned counsel for the appellant argued that PW1 and PW3 are interested witnesses and PW1 who belongs to the Marxist party has political vengeance against the appellant and in the absence of any corroboration from an independent witness, their evidence cannot be relied on. The specific evidence given by PW1 and PW3 is that on both occasions the appellant demanded bribe of ₹600/- when they alone were **CRL.A No.864/2009** 10 there at her residence. There was no independent witness to prove the demand. There is nothing to disbelieve the evidence of PW1 and PW3 as far as the demand made by the appellant is concerned. It is a case where as stated already, the appellant has admitted that the tainted MO1 and MO2 series were recovered from her MO12 bag which was kept at the Community Health Centre, Nenmara. Thus, it is up to the appellant to explain how the MO1 and MO2 series happened to be in her bag. The explanation offered by her is not at all believable or reliable. That apart, the evidence of PW3, the evidence of PW1 and to a certain extent the evidence of PW4 prove the acceptance of MO1 and MO2 series by the appellant. Thus, the demand and acceptance of illegal gratification has been amply proved by the prosecution through the evidence of PW1, PW3, PW4 and PW8. The evidence such as the positive result of phenolphthalein test on the hands of the appellant, on MO1 and MO2 currency notes and MO12 bag are circumstances to suggest that the appellant had accepted and handled the tainted notes. 11. Admittedly, the appellant was a public servant as **CRL.A No.864/2009** 11 defined under Section 2(C) of the P.C.Act working in her capacity at the Community Health Centre, Nenmara on the date of the incident. As stated already, the evidence of PW1, PW3, PW4 and PW8 proves the demand and acceptance of bribe by the appellant as well as the recovery from her bag. Once the prosecution has established that gratification in any form had been paid or accepted by a public servant, it can be presumed that the gratification was paid or accepted as a motive or reward for doing or forbearing to do any official act in a charge under Section 7 of the P.C.Act. Similarly, once it is proved that the appellant accepted the tainted money without any protest, it can be presumed that she obtained tainted money within the meaning of Section 13(1)(d) of the P.C. Act. The appellant failed to prove any satisfactory explanation for the receipt of MO1 and MO2 series currency notes from PW1. On the other hand, she denied the case of the prosecution that she accepted the MO1 and MO2 series currency notes. Thus, the prosecution has succeeded in proving beyond reasonable doubt that the appellant has taken gratification other than legal remuneration from PW1 in respect of his official act. **CRL.A No.864/2009** 12 12. The evidence on record, the sequence of events and circumstances narrated above clearly prove that the appellant accepted ₹600/- as illegal gratification from PW1 by abusing her official position as a public servant and availed pecuniary advantage by adopting corrupt and illegal means. Thus the court below was absolutely justified in convicting the appellant for the offence under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C. Act. The sentence imposed also appears to be very reasonable. The appeal fails and accordingly it is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** APA