Crl.A Nos. 526 & 573 of 2010 (K. Rajagopalana v. State of Kerala; A.K. Hashim v. State of Kerala)

Crl.A.Nos.526 & 573 of 2010 -:1:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 CRL.A NO. 526 OF 2010** **AGAINST THE JUDGMENT IN CC 1/2004 OF ENQUIRY COMR.& SPECIAL JUDGE,KOZHIKODE.** ## **APPELLANT/ACCUSED NO.1:** K.RAJAGOPALANA, S/O KORAN,KATTIPURAVAN HOUSE, KOLMOTTU, ANDOOR AMSOM,, PARASINIKADAVU, TALIPARAMBU TALUK. BY ADVS.R.ANIL, SRI.ANIL K.MOHAMMED SRI.T.ANIL KUMAR SRI.JOSEPH P.ALEX SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI. B. RAMAN PILLAI, SR. ADVOCATE ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SMT S REKHA SR PP, SRI A RAJESH SPL PP VACB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2023, ALONG WITH CRL.A.573/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.Nos.526 & 573 of 2010 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 CRL.A NO. 573 OF 2010** **AGAINST THE JUDGMENT IN CC 1/2004 OF ENQUIRY COMR.& SPECIAL JUDGE,KOZHIKODE.** ## **APPELLANT/2ND ACCUSED:** A.K.HASHIM, ANAYIDUKKA, THANA PO, KANNUR(VILLAGE MAN, KANNUR-1 VILLAGE). BY ADV SRI.P.U.SHAILAJAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALADY.S.P.VIGILANCE AND ANTICORRUPTION BUREAU,, KANNUR,THROUGH THE PUBLIC PROSECUTOR, HIGH COURT, OF KERALA,ERNAKULAM. BY SRI. A. RAJESH, SPL PP VACB, SMT. S. REKHA, SR.PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2023, ALONG WITH CRL.A.526/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.Nos.526 & 573 of 2010 **==> picture [37 x 10] intentionally omitted <==** **==> picture [323 x 10] intentionally omitted <==** ## **J U D G M E N T** Dated this the 24[th] day of August, 2023 These appeals have been preferred by the accused in C.C.No.1 of 2004 on the files of the Enquiry Commissioner and Special Judge, Kozhikode (for short 'the court below') challenging the judgment dated 19.02.2010 convicting and sentencing them under Sections 7 and 13 (1)(d) read with 13(2) of the Prevention of Corruption Act (for short 'the P.C. Act'). 2. The accused No.1 was the Village Officer, and the accused No.2 was the Village Man at Kannur-I Village. The case of the prosecution, in short, is that on 18.4.2002 at 4.45 pm, the accused, abusing their official position as public servants, demanded a sum of ₹200/- as bribe from the defacto complainant/decoy to issue 'Adangal Certificate' in the name of his wife and accepted ₹100/- each from him on 19.4.2002 at 12.15 pm at the Village Office. 3. After the trial, the accused were found guilty. They were convicted and sentenced to undergo rigorous imprisonment ## Crl.A.Nos.526 & 573 of 2010 -:4:or one year each and to pay a fine of ₹2,000/- each, in default to suffer rigorous imprisonment for six months each under Sections 7 and 13(2) read with 13(1)(d) of the PC Act. Challenging the judgment of conviction and sentence, the accused No.1 preferred Crl.A.No.526/2010 and the accused No.2 preferred Crl.A.No. 573/2010. 4. I have heard Sri. B. Raman Pillai, the learned Senior Counsel for the appellant in Crl.A.No.526/2010, Sri. P.U. Shylajan, the learned counsel for the appellant in Crl.A.No.573/2010 and Smt. S. Rekha, the learned Senior Public Prosecutor representing VACB. 5. The learned counsel for the appellants impeached the finding of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that the prosecution has miserably failed to prove that there was demand for illegal gratification by the accused, and in the absence of the same, the conviction is not sustainable. The counsel further submitted that the accused were illegally trapped, and a false case had been foisted against them. On the other hand, the learned Senior Public Prosecutor representing VACB ## Crl.A.Nos.526 & 573 of 2010 -:5:- supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 6. The prosecution mainly relied on the evidence of PWs 1, 2, 5 and 11, Ext.P1 and the attended circumstances to prove its case and to fix the culpability on the accused. PW1 is the defacto complainant. PW2 is the police constable and PW5 is an independent witness who accompanied the trap team. PW11 is the Dy.S.P. attached to the VACB, Kozhikode, who recorded Ext. P1 FI statement, registered Ext.P1(a) FIR, laid trap, seized MO7 currency notes and arrested the accused. According to the prosecution, the accused Nos.1 and 2 made a demand for illegal gratification from PW1 on 18.4.2002 at 4.45 pm at the Village Office, Kannur-I, and they accepted ₹100/- each from PW1 on 19.4.2002 at 12.15 pm in the same Village Office consequent to the trap. It is not disputed that accused No.1 was working as the Village Officer and accused No.2 was working as the Village Man at the Kannur-I Village during the relevant period. It is also not in dispute that the decoy (PW1) went to the Village Office, Kannur-I and applied for 'Adangal Certificate' in respect of the Crl.A.Nos.526 & 573 of 2010 -:6:- property belonging to his wife, who was examined as PW4. Ext.P7 is the application for 'Adangal Certificate'. PW6, the lawyer, gave evidence that he advised PW1 to get the 'Adangal Certificate' of the property of PW4 from the Village Office to file a suit for partition in respect of the said property. Ext.P7(a) would show that based on Ext.P7, 'Adangal Certificate' was issued by the accused No.1. 7. The version of PW1 in Ext. P1 FIS is that when he approached the accused Nos. 1 and 2 on 18.4.2002 to apply for 'Adangal Certificate', they demanded ₹200/- as illegal gratification. As he was unwilling to give the bribe demanded, he informed the matter to PW11, who arranged the trap. After that, as instructed by PW11, he went to the Village Office on 19.4.2002 at 12.15 pm and gave ₹100/- each to the accused Nos. 1 and 2, who accepted it. PW11 and the team reached the spot and recovered the same. However, PW1 did not support the said case fully while he was examined at the court. He admitted his signature in Ext.P1. According to him, he put the signature without reading its contents at the instance of the police. He specifically deposed that the accused did not make any demand ## Crl.A.Nos.526 & 573 of 2010 -:7:- for illegal gratification from him. He admitted that he went to the Village Office to apply for the 'Adangal Certificate' in respect of the property belonging to his wife and, after that, went to the Vigilance Office, met PW11 and gave ₹200/- as instructed. The explanation offered by him is that, while he was waiting in front of the Village Office, one stranger came to him and told him that, to obtain the 'Adangal Certificate' from the Village Office, he must bribe the Officers. The so-called stranger advised him to file a complaint at the Vigilance Office. Accordingly, he went to the Vigilance Office and put his signature in Ext.P1, prepared by the police. PW4, the wife of PW1, also did not support the prosecution case. She stated that the accused did not make any demand of illegal gratification from her husband. 8. PWs 2, 5 and 11 gave evidence that at about 11.15 am on 19.4.2002, PW1 handed over two currency notes of ₹100/- denomination to PW11, who, after putting initials in the watermarked portion of it, smeared phenolphthalein powder and handed over back to PW1 with a direction to give it to the accused on demand. The currency notes were marked as MO7 series. After the pre-trap formalities at the Vigilance Office, they Crl.A.Nos.526 & 573 of 2010 -:8:- proceeded to the Village Office. PW1 was sent to the Village Office along with PW2 and another Constable for paying the phenolphthalein smeared MO7 series notes to the accused. PW1 met accused Nos. 1 and 2 at the Village Office and gave ₹100/each to them, and they accepted it. On getting the signal, the trap team, including PW11 and PW5, reached the Village Office and seized and recovered MO7 series currency notes from the possession of accused Nos.1 and 2. The phenolphthalein test was administered on the hands of the accused as well as on the notes recovered from them, and colour change was noticed. 9. It is trite that the proof of demand and acceptance of illegal gratification by a public servant is a pre-requisite to establish the guilt of the accused/public servant under Section 7 and 13(1)(d) sub-clauses (i) and (ii) of the PC Act. Mere acceptance of the currency notes by the accused, its recovery thereof and positive result of phenolphthalein test _de hors_ proof of demand is not sufficient to attract the offences under Section 7 and 13(1)(d) sub-clauses (i) (ii) of the PC Act. The Constitution Bench of the Apex Court in _**Neeraj Dutta v. State (NCT of Delhi)**_ [AIR 2023 SC 330] summarised the principles to be Crl.A.Nos.526 & 573 of 2010 -:9:- applied in establishing demand and acceptance in a case in which a public servant faces a charge under Section 7 or 13(1)(d) of the PC Act. The principles summarised by the Apex Court are as follows: “xxxxx “74. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a Crl.A.Nos.526 & 573 of 2010 -:10:- case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and(i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the Crl.A.Nos.526 & 573 of 2010 ## -:11:- accused and in the absence of rebuttal presumption stands. (f) In the event of complaint turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 10. The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus: “76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Crl.A.Nos.526 & 573 of 2010 -:12:Act based on other evidence adduced by the prosecution.” 10. Recently, the Apex Court in _**Jagtar Singh v. State of Punjab**_ (AIR 2023 SC 1567), following the decision in _**Neeraj Dutta**_ (supra) reiterated the principle that the demand of illegal gratification, at least by circumstantial evidence, is _sine qua non_ to attract the offence under Section 7 or 13(1)(d) (i) and (ii) of the PC Act. In short, the demand by the public servant for illegal gratification must be independently proved by the prosecution as a fact in issue to establish the guilt under Section 13(1)(d) (i) and (ii) of the PC Act. In other words, mere acceptance, or receipt of illegal gratification without demand would not make it an offence under those Sections. 11. The evidence of PWs 2, 5 and 11 discussed above, coupled with the positive result of the phenolphthalein test on the hands of the accused and the colour change that occurred to MO7 series currency notes, are sufficient to hold that the prosecution has succeeded in proving the acceptance of MO7 series currency notes by accused Nos. 1 and 2 from PW1 and their recovery by PW11. Even though PW1 did not support the ## Crl.A.Nos.526 & 573 of 2010 -:13:prosecution case fully, he admitted his presence at the Village Office at the time of the seizure of the MO7 series and arrest of the accused. 12. Though there is evidence to prove the acceptance of MO7 currency notes by the accused from PW1, the crucial question is whether there is sufficient legal evidence to prove the demand of illegal gratification by the accused to attract the offence of Sections 7 and 13(1)(d) of the PC Act. As already elaborated in detail, mere acceptance of illegal gratification by the accused or the recovery of phenolphthalein-smeared currency notes from their possession without proof of demand is not sufficient to establish their guilt. PW1 is the solitary witness cited by the prosecution to prove the alleged demand. PW4 was cited to corroborate the evidence of PW1 in this regard. But both deposed in unambiguous terms that no such demand was ever made by the accused Nos. 1 and 2. The prosecution examined no other independent witness to prove the alleged demand. The Apex Court in _**Neeraj Dutta**_ (supra) has stated that in the event of defacto complainant turns 'hostile' or has died or is unavailable to let in his evidence during the trial, the demand of illegal ## Crl.A.Nos.526 & 573 of 2010 -:14:gratification can be proved by circumstantial evidence. Here, apart from PWs 1 and 4, no other independent witness was cited or examined by the prosecution to prove the demand. There is no other circumstantial evidence either. The prosecution heavily relied on Ext.P1 FI Statement. True, in Ext.P1, PW1 had stated in unambiguous terms that both the accused Nos. 1 and 2 made a demand for bribe on 18/4/2002 when he met them. It is settled that FIR is not a substantive piece of evidence. It can only corroborate or contradict the informant's evidence in Court. The facts stated in the FIR cannot be proved by mere production of the FIR. The maker must depose its contents. Hence, in the absence of oral evidence of PW1 that there was a demand of illegal gratification by the accused Nos.1 and 2, the contents alone in Ext.P1 that accused Nos.1 and 2 made the demand to him cannot be relied on. This is not a case where the demand was reiterated when the money was accepted by the accused Nos. 1 and 2. This is also not a case where there is circumstantial evidence to prove the demand. In the absence of evidence to prove demand, the conviction and sentence of the appellants cannot be legally sustained. ## Crl.A.Nos.526 & 573 of 2010 -:15:- 13. As stated already, there is evidence on record to show that the accused accepted MO7 series currency notes from PW1 and PW11 and his team recovered them. However, this Court is constrained to acquit the accused for want of legal evidence to prove the demand of illegal gratification. The only witness cited by the prosecution to prove the demand is PW1. But he did not support the prosecution. Even though he did not support the prosecution case, he admitted his signature in Ext.P1. He admitted that on 18/4/2002, he went to the Village Office and applied for 'Adangal Certificate'. He also admitted that he went to the Vigilance Office on 19/4/2002, gave MO7 series notes to PW11, who smeared phenolphthalein powder on it and conducted pre-trap formalities. He further admitted that, after that, he went to the Village Office at about 11.55 a.m. He admitted the presence of PWs 2, 5, and 11 and the trap team at the village office at that time. But he, conveniently, and it appears purposefully, stated that no demand was made by the accused Nos. 1 and 2 from him as opposed to his version in Ext.P1. The evaluation of his evidence and the attended circumstances mentioned in the previous paragraphs clearly indicate that he ## Crl.A.Nos.526 & 573 of 2010 -:16:- spoke falsehood at the Court below. He gave evidence that he knew that the accused were straightforward officers and the vigilance party was contemplating trapping him in a false case. Still, he cooperated with the vigilance party. It is pertinent to note that, after the incident, he did not make any complaint at all to any of the authorities against the vigilance officials. In chief examination, he admitted his signature in Ext.P1. He said he put his signature in Ext.P1 without reading its content. But in crossexamination, he stated that PW11 threatened him to put his signature in Ext.P1, and accordingly, he put his signature. All this evidence and circumstances suggest that PW1 intentionally gave false evidence at the Court below. In these circumstances, the Court below ought to have proceeded against PW1 under Section 340, read with Section 195(1) of Cr.P.C. for deliberately giving false evidence at the Court, which is punishable under Section 193 of IPC. The Apex Court in _**Perumal v. Janaki**_ [2014 KHC 4035] has held that the High Courts not only have the authority to exercise the jurisdiction under Section 195(1) and 340 of Cr.P.C. but also an obligation to exercise such power in appropriate cases. By a perusal of the impugned judgment and ## Crl.A.Nos.526 & 573 of 2010 -:17:- the evidence on record, I am satisfied that it is expedient in the interest of justice to initiate an enquiry into the offences punishable under Section 193 of IPC against PW1. Prosecution should be ordered in cases where perjury appears to be deliberate. Giving false evidence is an evil which must be effectively curbed and dealt with with a strong hand. 14. In the light of the above findings, the conviction and sentence of the appellants vide impugned judgment are hereby set aside. The appellants are acquitted of the charges levelled against them. Their bail bonds are cancelled. The Court below is directed to proceed against PW1 under Section 340 read with Section 195(1) of Cr.P.C for deliberately giving false evidence at the Court. The Registry is directed to forward a copy of this judgment to the Court below for compliance. The appeals are allowed as above. ## **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** ## **kp/APA**