CRL.A No.351 of 2009 (Against the Order/Judgment in CC 43/2005 dated 28-01-2009 of Enquiry Commissioner & Special Judge, Thiruvananthapuram)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SHRAVANA, 1942** **CRL.A.No.351 OF 2009** **AGAINST THE ORDER/JUDGMENT IN CC 43/2005 DATED 28-01-2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, TRIVANDRUM** ## **APPELLANT/ACCUSED NO.1:** **MANOHARAN CHETTIYAR (FORMER SPL.VILLAGE OFFICER, NEMOM), KRISHNA BHAVAN, MOTTAMOOD, NARUVAMOOD PO., THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SRI.V.C.SARATH SMT.POOJA PANKAJ SRI.THOMAS J.ANAKKALLUNKAL SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **PUBLIC PROSECUTOR : SRI A RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2020, THE COURT ON 27-07-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.351/2009 2 ## **JUDGMENT** The first accused in CC No.43/2005 of the Enquiry Commissioner Special Judge, Thiruvananthapuram, aggrieved by the judgment, conviction and sentence for offences punishable under sections 7 and 13 (1) (d) r/w 13(2) of the PC Act 1988 is the appellant herein. 2. The prosecution case was that, the first accused was the Special Village Officer and the second accused was the Village Officer of Nemom village office during the relevant period and accordingly were public servants. They, in furtherance of their common intention to derive pecuniary advantage to themselves, demanded a bribe of Rs.25,000/- from CW1 on 7/2/2004 at the village office Nemom in consideration of effecting mutation of auction of property jointly purchased by CW1 and PW1 by sale deed No.93/2000 of SRO Nemom. It was alleged that, they had submitted an application for effecting mutation of the property. Thereafter, the accused negotiated and ultimately reduced the bribe to Rs.15,000/-. CW1 reported the matter to the DYSP, VACB, SIU, Thiruvananthapuram who recorded the statement, procured the presence of two gazetted officers and laid a trap on 11/2/2004 at 3.p.m., Five currency notes of Rs.1,000/- denomination smeared with phenolphthalein powder were entrusted to CW1, after subscribing on it the initials of DYSP. Accordingly, on same day at 4.15 p.m.,the appellant, for himself and on Crl.Appeal No.351/2009 3 behalf of the second accused accepted a sum of Rs.5,000/- as part payment of bribe. Trap was conducted successfully and the first accused was arrested from the spot. On an allegation that the appellant had received the amount on behalf of the second accused and they had entered into the criminal conspiracy, crime was registered against both of them. In the course of investigation, requisite sanction was obtained from their superior officer and charge was laid. 3. Pursuant to the summons issued, both the accused appeared and charges were framed for offences punishable under sections 7 and 13 (1)(d) r/w section 13 (2) of the PC Act r/w section 34 IPC. It was read over and explained to the accused who denied the charges. On the side of the prosecution, PWs1 to PW11 were examined and Exts.P1 to P25 were marked. MOS 1 to 8 were identified. After conducting section 313 Cr.P.C questioning, the accused were called upon to enter on their defence. 4. The contention set up by the first accused in his section 313 Cr.P.C. statement was that, PW2 and PW3 came to office and submitted Ext.P1 application for effecting mutation of the property jointly purchased by CW1 and PW1. The procedure in such cases was that the Village Officer has to conduct site inspection, prepare A form, effect sub division and submit report to the Tahsildar. Thereafter, subject to the receipt of the orders of the Tahsildar, mutation has to be effected. Crl.Appeal No.351/2009 4 Accordingly, he along with PW2 and the village man inspected the property and directed CW1 to deposit the fee. He did not turn up and did not remit the fee. CW1 in fact was maintaining animosity towards him due to a financial transaction between the wife of the first accused and the wife of CW1. The wife of the CW1 had got a promissory note executed by wife of the first accused, which she refused to return in spite payment of the entire money. There was some quarrel between CW1 and the wife of the first accused. As a retaliation, on 11/2/2004 while the first accused was entering the village office, CW1 came from behind and thrust cash into his pocket, which accused tried to ward off. In the meanwhile, the vigilance party came, caught hold of his forearms, took him to his office and forced him to sit on his chair. In spite of his attempt to explain his innocence, the vigilance party was not willing to hear him. The mahazar was not prepared properly and correctly, it was alleged. 5. To substantiate his above defence, he got examined DW1 and DW2. On an evaluation of the entire evidence, the court below found the first accused guilty for offences punishable under section 7 of the PC Act. He was acquitted of the offences under section 13 (2) read with section 13 (1)(d) of the PC Act. The court held that, there was no evidence to connect the second accused with the crime and he was acquitted. The first accused was sentenced to undergo RI for two years Crl.Appeal No.351/2009 5 and to pay a fine of Rs.5,000/- and in default to pay fine, to undergo RI for three months. Set off was allowed. 6. Aggrieved by the conviction and sentence , the first accused has preferred this appeal. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. It is admitted that the first accused was a public servant being engaged as Special Village Officer of Nemom village office. PW4 was the LD clerk of Thriuvananthapuram Taluk office who proved Ext.P7, posting order of the first accused. Ext.P8 attendance register was proved by PW5. It shows that the first accused had attended the office on 11/2/2004. These two documents coupled with the oral testimony of PW4 and PW5 convincingly establish that the first accused was the Special Village Officer and thereby a public servant and had attended the office on the relevant day. These facts are not essentially disputed. 9. PW7 was the Deputy Land Revenue Commissioner. She deposed that, she was competent to remove the first accused from service. She granted Ext.P14 sanction to prosecute the first accused. According to her, it was issued after perusing the relevant records. The version of PW7 was not seriously attacked in the cross examination. Hence, it is proved that valid sanction was obtained before prosecuting Crl.Appeal No.351/2009 6 the first accused. 10. CW1, the complainant died after the crime was registered. Hence, he could not be examined. Hence, the co-owner of the property, PW1 was examined. Regarding the allegation of demand and acceptance, prosecution relied on the evidence of PW1, PW2 and PW3. It is not in dispute that, CW1 and PW1 had jointly purchased 47½ cents of property in Survey No.93/2000 of SRO Nemom by Ext.P2 sale deed. They had jointly submitted Ext.P1 application for effecting mutation of the property. Prosecution allegation was that it was returned by the village officer stating that it can be considered only on production of the original. Later PW2 and PW3 went to the village office. Both the above witnesses in their evidence deposed that they had gone to the village office and village officer wanted the site inspection to be conducted. They took him for the site inspection. The prosecution allegation was that thereafter first accused demanded a sum of Rs.25,000/- from CW1 on behalf of both the accused. CW1 went to PW8, DYSP/VACB/SIU on 11/2/2004 and gave Ext.P15 statement. It was recorded and Ext.P15(a) (crime No.2/2004) was registered. Prosecution alleged that, trap was laid thereafter and was successfully conducted. 11. To establish the demand of bribe by the first accused, PW1 was examined. However, he feigned ignorance regarding the crucial facts including the demand. He turned hostile and he deposed that he Crl.Appeal No.351/2009 7 was not aware of demand of bribe by the first accused. He was also not aware of the complaint laid by CW1 before the Vigilance and the trap. He only stated that he had vague information that the vigilance case was pending since it was reported in newspapers. 12. PW2 was a relative of CW1. He deposed that Ext.P1 application was submitted by CW1 and that he had gone with PW3 to the village office. The village officer was taken for site inspection. On the next day, when they met first accused he enquired whether one among them was CW1. Since it was reported that CW1 was another person, village officer asked them to send CW1. PW2 asserted that CW1 had not informed him anything about the demand for bribe and that the first accused did not make any demand for money to him. 13. PW3 corroborated the version of PW2 that he along with PW2 had gone to the village office. But, he turned hostile and did not support the prosecution case in any manner. Hence there is absolutely no evidence to support the prosecution case that there was demand for money when CW1 met the first accused. 14. To establish that on 11/2/2004 there was again a demand for money and that money was paid as bribe, the prosecution relied on the evidence of PW6 and PW8 and the contemporaneous documents. PW6 was the Assistant District Industries officer of Thiruvananthapuram. He deposed that as directed by his General Manager, he had Crl.Appeal No.351/2009 8 participated in the trap. He gave details of the pre trap arrangements conducted at the office, the entrustment of five currency notes of Rs. 1,000/- denomination smeared with phenolphthalein powder, and the pre trap mahazar marked as Ext.P12. He also deposed about the actual trap and the post trap proceedings as seen by him in the office. He stated that after they reached the village office he along with other village officers waited outside the compound. CW1 along with the shadow witness went inside the village office. When PW6 and others got signal from a police constables outside the village office, they rushed to the village office along with PW8, the detecting officer. He saw the village officer sitting in his chair and that two policemen were holding his arm. CW1 informed that money was received by the first accused with his left hand and kept it in his left pocket. Currency notes were recovered and post trap proceedings including the phenolphthalein test were conducted. He identified the first accused who was standing in the dock as the person who was found sitting in the chair on that day. He deposed that when the left fingers of the first accused were dipped in lime water, it turned pink. When the right fingers were dipped, there was no colour change . The currency notes that were recovered from his pocket tallied with the notes smeared with phenolphthalein powder and which were entrusted to PW1, 15. PW8, the detecting officer, also deposed about the complaint Crl.Appeal No.351/2009 9 laid down by CW1, the pre trap arrangements, successful conduct of trap and the post trap proceedings. His version completely corroborated with the version of PW6 in its entirety. 16. Analysis of the evidences of PW6 and PW8 shows that they reached the spot after the money was handed over. Evidently, they have not seen the actual handing over of the money. CW1 and shadow witness, who were the persons who could have actually seen the handing over of the money were not examined. 17. In this background, the defence of the first accused is significant. The defence case was that CW1 had an enmity towards the first accused which arose out of the strained money transaction between the wife of the first accused and the wife of CW1. First accused claimed that, he had picked up a quarrel with the wife of CW1 few days prior to the incident. As a retaliation, while he was entering the village office after taking coffee, the cash was thrusted into his pocket. The prosecution allegation itself was that the money was entrusted on CW1 outside the village office. However, when PW6 and PW8 reached the spot, the first accused was seen sitting on his chair, with arms held by police personnel. The accused has a specific allegation that, he had objected to the thrusting of money into his pocket, but has caught by the vigilance in the mean while. Crl.Appeal No.351/2009 10 18. DW1 was a village man employed in the office. He was examined to establish that the money was thrusted into the pocket of accused by CW1. In the course of cross examination, he had deposed that, he was on duty on the relevant day. However, the attendance register did not show that he had marked his presence on that day in the afternoon. The court below rejected the version of the DW1 since his signature was not seen on the attendance register and that, even though a specific case that money was thrust into the pocket of the first accused to trap him was raised, but no complaint was made by him to his superiors in this regard. Hence, court below has correctly held that his evidence is not dependable. 19. In the light of the above materials, it is clear that, there is no direct or circumstantial evidence to establish that whether the money was voluntarily received by the first accused or he had received it knowingly. The only evidence available is the recovery of currency notes smeared with phenolphthalein powder from the pocket of the first accused. 20. The court below however proceeded to hold that, every acceptance of illegal gratification whether preceded by a demand or not, would be covered under Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it should also fall under section 13 (1)(d) of the Act. To Crl.Appeal No.351/2009 11 substantiate this conclusion, the trial court relied on the decision reported in **Inspector of Police, Tamil Nadu v. A.Parthiban [2006 (11) SCC 473].** 21. The learned Public Prosecutor defended the conviction and sentence contending that the demand and acceptance could be established by circumstantial evidence, if direct evidence is not forthcoming. The learned Prosecutor relied on the decision of the Supreme Court reported in **Hazarilal v. State Delhi Administration** **(AIR 1980 SCC 873)** to support this contention. It was held by the Supreme Court that, it was not necessary that, passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. 22. It was contended by the learned Public Prosecutor that, presumption under section 20 was compulsory and not discretionary. Once the prosecution proved that the accused had received gratification, the Court could draw legal presumption that the gratification was accepted as reward for doing public duty. Learned Public Prosecutor relied on the three judges Bench decision of the Supreme Court in **M.Narsinga Rao v. State of Andhra Pradesh (AIR 2001 Supreme Court 318)** to substantiate the above contention. In that case, the appellant/accused allegedly received bribe money of Rs.500/- He was caught red-handed in a trap arranged by the Anti Crl.Appeal No.351/2009 12 Corruption Bureau. PW1 and PW2 turned hostile and they denied having paid any bribe to the accused. According to them, they had acted on behalf of one Krishna Rao who had directed them to trap the accused. In section 313 Cr.P.C. statement, accused took up the same contention that the above mentioned Krishna Rao maintained grudge against him and hence he had been falsely implicated. Rejecting the defence, both the trial court and the High Court held the accused guilty, convicted and was sentenced. 23. Before the Supreme Court, the learned counsel for the accused adopted twin contentions. Firstly, it was argued that the presumption under section 20 of the Act can be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification, That premise cannot depend on an inference for affording foundation for the legal presumption envisaged in section 20 of the Act. The second limb of his contention was that, it was not enough that some currency notes were handed over to the public servant to make it acceptance of gratification. Prosecution has a further duty to prove that, what was paid amounted to gratification, it was contended. 24. Refuting the above contention, the Apex Court relied on the decision reported in **Rabhubir Singh v. State of Haryana (AIR 1974 SC 1516)** as well as the decision in Hazarilal v. Delhi Administration Crl.Appeal No.351/2009 13 (Supra). In both the cases, it was held that, passing of money should be proved by direct evidence or by circumstantial evidence. Three judges Bench held that the acceptance of gratification can be rested on presumption which is compulsory and not discretionary. It was held by the Supreme Court that the detecting officer had stated that, PW1 had approached him on the previous day and lodged Ext.P2 complaint stating that the accused had demanded money. The currency notes smeared with phenolphthalein powder were handed over to the defacto complainant. When the accused was caught red-handed with those currency notes, he never objected that, he had not received the money. Based on these facts, which were proved, it was held that the court can legitimately draw a presumption that, appellant received or accepted the said currency notes on his own volition. 25. Learned Public Prosecutor further relied on the decision reported in **Vinod Kumar v. State of Punjab( AIR 2015 Supreme Court 1206)** . In that, it was held by the Supreme Court, referring to the three Judges Bench decision of the Supreme Court in **B. Jayraj v. State of Andhra Pradesh** ( **AIR 2014 SC (Supp)1837)** and **M.R.Purushotham v. State of Karnataka** ( **AIR 2015 SC (Crl.) 139)** that, those decisions did not lay down as a proposition of law that when the complainant turns hostile and does not support the case of prosecution, the prosecution cannot prove its case otherwise and the Crl.Appeal No.351/2009 14 Court cannot legitimately draw the presumption under section 20 of the Act. 26. Per contra, learned counsel for the accused relied on the three Judges Bench of the Supreme Court in **Jayaraj v. State of Andhra Pradesh [supra]** as well as the decision in **P.Satyanarayana Murthy v . District Inspector of Police, State of Andra Pradesh and another [(2015) 10 Supreme Court Cases 152]** . In Jayaraj's case, the complainant turned hostile and no other witnesses were present at the time of transaction between PW2 and the accused. When it was held that, PW2 disowned his own statement and the contents of complaint, mere recovery of tainted currency notes from appellant/accused did not establish the commission of crime. It was held that, to constitute an offence under section 7 of the P.C.Act, it was settled position of law that, demand of illegal gratification was the sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 of the PC Act, unless it was proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. 27. In P.Satyanarayana Murthy 's case (supra) also, the Supreme Court held that the plaintiff had expired and demand was not proved. Evidence of other witnesses was not sufficient to prove demand, though recovery proved. It was reiterated that, mere acceptance of any amount Crl.Appeal No.351/2009 15 allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under sections 7 of the PC Act. Hence, conviction was set aside by the three judge's Bench. 28. The contention of the learned Public Prosecutor was that, once demand was established by direct or circumstantial evidence, the presumption under section 20 can be drawn and the finding of guilt under section 7 of the PC Act can be arrived at. It was contended that, in the case at hand, though there was no direct evidence regarding demand, the fact that the complaint was made by CW1, that tainted money was recovered from the accused, that he had given a complaint, trap was successfully laid were established and from those circumstances, a confirmation can be obtained that there was demand. However, three Judges Bench decision of the supreme Court in P.Satyanarayana Murthy 's case (supra) as well as in B. Jayaraj's case (supra) takes the view that, demand must be proved and mere possession of tainted money will not be sufficient. It is pertinent to note that, in Vinod Kumar's case, the Court had taken note of Jayaraj's case. It is true that, merely on the ground that complainant was no more and the witnesses of the prosecution did not support the prosecution case, automatically crime has to fall to ground. It is to be noted that, still, it is possible for the prosecution to establish the allegation against the Crl.Appeal No.351/2009 16 accused by any acceptable evidence. However, unless that ground is established by direct or circumstantial evidence, the presumption under section 20 cannot be drawn. In other words, presumption has to be based on a factual basis and it cannot arise from vaccum. 29. In the case at hand, there was absolutely no material to indicate the demand made by the accused. There was not even indirect evidence to establish that demand was made. There is no reliable evidence as to how money reached the pocket of the first accused. This is significant in the light of defence set up by the accused. 30. In the light of the above, the appellant is entitled for the benefit of doubt. Hence, appellant is liable to be acquitted. In the result, criminal appeal is allowed. The conviction and sentence are set aside and the accused is acquitted. Bail bond executed by him will stand discharged. Sd/- ## **SUNIL THOMAS** Dpk ## **JUDGE**