C.V. Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** ## **CRL.A.No. 265 of 2011** **----------------------CC 62/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** **-------------** ## **APPELLANT/ACCUSED:** **-----------------** **C.V.THOMAS, AGED 60 YEARS, S/O.C.J.VARGHESE, CHANDRAVIL, KIZHAKKEKALLADA P.O, KOLLAM.** **BY ADVS.SRI.C.PRATHAPACHANDRAN PILLAI SRI.P.KRISHNA KUMAR (ALAPPUZHA) SRI.SUNIL J.CHAKKALACKAL** ## **RESPONDENT/COMPLAINANT:** **----------------------** **THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, THE HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT SHEEBA.MT** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT 21-12-2016 DELIVERED THE FOLLOWING:** **K.V.** **CRA 265 OF 2011:** ## **---------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **---------------------** **A1: COPY OF THE PENSION PAYMENT ORDER DATED 9.9.2010. A2: COPY OF PASS BOOK EVIDENCING THE ACCOUNT MAINTAINED BY THE APPELLANT IN THE TREASURY SAVINGS BANK SUB,TREASURY,KUNDARA. A3: COPY OF THE SHOW CAUSE NOTICE DATED 19.1.2012.** **RESPONDENTS ANNEXURES: NIL** **----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **P.UBAID, J.** ============================== **Crl.Appeal No.265 of 2011** ================================= Dated this the 21[st] day of December, 2016 ## **JUDGMENT** The appellant herein was the Revenue Divisional Officer, Chengannur in July 2005. On the allegation that he accepted an illegal gratification Rs.4,000/- on 18.07.2005 at about 5.20 pm at the Nangiarkulangara junction, from one Shibulal, as a reward for exempting the house building of Shibulal's friend Suresh from luxury tax, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge, Kottayam in C.C.No.62 of 2008. The building owner Suresh is employed abroad. The said building was assessed to luxury tax in 2002, and notice was also given to Suresh for the collection of tax. On getting such notice, Suresh made an application for exemption from tax on certain grounds, and the said application was presented Crl.Appeal No.265 of 2011 2 at the village office by his friend Shibulal. The Village Officer inspected the building, and found that tax exemption is not possible. Though Shibulal approached the Revenue Tahsildar, he did not intervene, and he forwarded the file to the Revenue Divisional Officer. Thereafter, Shibulal met the appellant at his office on many occasions in connection with the said request. The prosecution case is that when Shibulal approached the accused on 06.07.2005, he demanded an amount of Rs.10,000/-, but when Shibulal made a request to reduce the claim, the RDO agreed for Rs.4,000/-, and asked Shibulal to make payment on 18.07.2005. As he was not inclined to make payment of bribe, he made a complaint before the Vigilance and Anti-Corruption Bureau (VACB) on 18.07.2005. On the said complaint, the Deputy Superintendent of Police, VACB arranged a trap, and Shibulal was directed to contact the accused over telephone to ascertain the way in which and the place at which the amount will have to be paid. The trap money produced by Shibulal was accepted as per mahazar by the Crl.Appeal No.265 of 2011 3 Deputy Superintendent of Police, and it was smeared with phenolphthalein. As the accused had informed Shibulal that he could meet him at Nangiarkulangara junction on his way to Kayamkulam, the vigilance team instructed the complainant to wait for the accused at the Nangiarkulangara junction, and to make payment of bribe. The trap team led by the Deputy Superintendent of Police also waited at a short distance, without being noticed. It is alleged that when the car of the RDO reached at the Nangiarkulangara junction, the complainant gave signal to stop, he joined the RDO, and made payment of the tainted money of Rs.4,000/- to the RDO. On getting signal from Shibulal, the Vigilance team followed the car, and obstructed it on the way. The Dy.SP introduced himself to the accused, who was found perplexed, and on being satisfied of acceptance of money from the complainant, the accused along with his car was taken to the Agricultural Office at Harippadu. The tainted money was seized by the Deputy Superintendent of Police, and after conducting phenolphthalein test, the Crl.Appeal No.265 of 2011 4 accused was arrested on the spot at the Agricultural Office at Harippadu. After investigation, the VACB submitted final report in Court. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The prosecution examined twelve witnesses and proved Exts.P1 to P25 documents. The MO1 to MO8 series properties were also identified during trial. The accused projected a defence that he had not voluntarily received anything from the complainant as illegal gratification, that the money was probably put under the file by the complainant without his knowledge, and that he was viciouosly trapped on a false complaint, for the reason that he was not inclined to grant exemption from luxury tax. The accused examined two witnesses, and proved Ext.D1 document in defence. On an examination of the entire evidence, the trial court found the prosecution case true, that the accused had accepted Rs.4,000/- as illegal Crl.Appeal No.265 of 2011 5 grantification from the complainant. Accordingly, he was convicted, and on conviction he was sentenced to undergo rigorous imprisonment for three years each, and to pay a fine of 50,000/- each under Sections 7 and 13(2)₹ read with Section 13(1)(d) by judgment dated 20.01.2011 in C.C.No.62 of 2008. Aggrieved by the judgment of conviction the accused has come up in appeal. 3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution case is really suspicious, that the appellant had not in fact voluntarily accepted any amount from the complainant, and that in the absence of anything to prove acceptance of illegal gratification, the appellant is entitled for acquittal. On the other hand, the learned Public Prosecutor submitted that the essentials for a prosecution stand well proved, and that there is nothing to doubt about the evidence given by the witnesses regarding demand and acceptance. 4. The accused had retired from service by the time the final report came, and so there is no question Crl.Appeal No.265 of 2011 6 of prosecution saction under Section 19 of the PC Act. 5. The main witnesses in this case are PW1, the complaiant, PW2 and PW3, the trap witnesses, and PW12, the Deputy Superintendent of Police, who detected the offence. PW4 to PW6 are the staff of the Revenue Divisional Office, examined to prove production of some documents during investigation, PW7 is the Office Peon of the RDO, who had been in his car at the time of detection, PW8 is the wife of Suresh, PW9 is the Village Officer who prepared the Ext.P17 plan, PW10 is the Panchayath Secretary who issued the Ext.P18 Ownership Certificate relating to the building in question, and PW11 is the Deputy Superintendent of Police who submitted final report. 6. It is well settled by so many decisions of the Honourable Supreme Court that on the basis of recovery of tainted money alone, or just because the phenolphthalein test turned positive during the trap process, the accused cannot be convicted under Sections 7 or 13(2) read with Section 13(1)(d) of the Prevention of Crl.Appeal No.265 of 2011 7 Corruption Act. The trend of all the decisions on the point is that the prosecution must prove the essentials like demand and acceptance for such a conviction. What is more important is that there must be clear evidence proving voluntary acceptance of illegal gratification by the accused, for a conviction under Section 7 or 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Some of the important decisions on this point are the following; **“Jayaraj-B Vs. State of Andhra Pradhesh [2014-CrLJ 2433]** ; **C.Sukumaran Vs. State of Kerala [2015 CrLJ-1715]** ; **P.Sathyanarayana Murthi Vs.District Inspector of Police, State of Andhra Pradhesh and another [(2015) 10 SCC 152]** ; **Selvaraj Vs. State of Karnataka [(2015) 10 SCC 230]”.** Thus it stands settled by all the decisions consistently, that there must be voluntary acceptance of illegal gratification by the accused, and the prosecution must also prove that the amount allegedly accepted by Crl.Appeal No.265 of 2011 8 the accused voluntarily must have been seized from his possession. In short, just because tainted money was seized from the possession of the accused, or just because tainted money happened to be seized from his office or premises, the accused cannot be convicted in the absence of positive and definite evidence proving voluntary acceptance of the said amount as illegal gratification. 7. In **Satvir Singh Vs. State of Delhi [AIR 2014 SC 3798]** the Honourable Supreme Court held that the tainted money, or the illegal gratification allegedly received by the accused must have been recovered from his possession, or from the person of the accused, for a conviction under Section 7 or Section 13(2) of the Prevention of Corruption Act. It is a case where a bag containing the amount given as illegal gratification was kept on a steel cot at the residence of the accused. It was not recovered from his possession directly. In the said case, the Honourable Supreme Court held that acceptance of illgeal gratification cannot be said to have Crl.Appeal No.265 of 2011 9 been proved. In **Mukut Bihari and Another v. State of Rajasthan [AIR 2012 SC 2270 = 2012 CriLJ 3370],** the Honourable Supreme Court held that mere recovery of tainted money is not sufficient to convict the accused, and that there must be evidence, to prove payment of bribe, or to show that the money was taken voluntarily as bribe. The Honourable Supreme Court also held that the burden rests on the accused to displace the statutory presumption raised under Section 20 of the PC Act, once acceptance of illegal gractification is proved by the prosecution. 8. The presumption under Section 20 of the PC Act is not regarding guilt of the accused, but only that money was received by the accused as a reward for doing something. Even to raise such a presumption there must be evidence proving voluntary acceptance of illegal gratification by the accused. Now let me see whether there is convincing and satisfactorily evidence in this case proving voluntary acceptance of illegal gratification by the appellant. Crl.Appeal No.265 of 2011 10 9. The oral evidence given by the material witnesses need not be elaborately discussed when discussion of a portion of the evidence would suffice for a decision on the very material aspect, as to whether the alleged illegal gratification of Rs.4,000/- in this case was voluntarily accepted by the accused in his hands or otherwise. To prove demand and also acceptance, there is only the evidence of the complainant, because money was paid inside the car of the accused. On the other factual aspects, there is no dispute or confusion. That the complainant had joined the accused at the Nangiarkulangara junction at about 5.20 p.m. on 18.07.2005 is well proved. But the material question is whether the appellant had accepted anything voluntarily from the complainant inside the car. Even according to the complainant, the money was not accepted in his hands by the accused. His evidence is that when he tendered the amount the accused did not accept it in his hands, and so he placed the currency notes under a file seen on the seat. Thus, the complainant has no case that Crl.Appeal No.265 of 2011 11 the money paid by him was accepted or received by the accused in his hands, or that it was voluntarily accepted by him. To quote from the evidence of PW1, “¾ÞX èÉØ ¥çgÙJßÈí æµÞ¿áAÞX ÈàGß.åÎáXÕÖ¢ §øáKÕV çµZAÞæÄ èÉØ ËÏÜßÈí ¥¿ßÏßçÜAí ÕÏíAÞX ÉùEí ¥çgÙJßæa ÕÜÄí ÕÖJáIÞÏßøáK ËÏW æÉÞAßJKá.åèÉØ æÕºî ©¿æÈ ¥çgÙ¢ èÉØ ®¿áJí ËÏÜßÈ¿ßÏßçÜAí µáçùAâ¿ß ÈàAß Õºîá.” (When I tendered the amount, the accused asked me to put it under a file, without being heard by the others on the front seat. Immediately when I put the amount under the file, the accused took it and pushed it fully to the file, to conceal it fully). 10. Here assumes the importance of the question, whether illegal gratification was voluntarily accepted by the accused. It has come out in evidence that when the right hand of the accused was dipped in phenolphthalein solution at the agricultural office it turned only slighly pink in colour. The definite defence is that there was no colour change at all when the right hand of Crl.Appeal No.265 of 2011 12 the accused was dipped in the solution, and that even now the particular liquid is colourless. Had the accused in fact touched the tainted currency, or taken it to push inside the file as the complainant would say, the phenolphthalein test would definitely have turned positive with visible pink colour. The judgment of the learned trial Judge shows that when examined during trial, it was found really colourless. The defence is definite that at the time of test itself the solution was colourless and there was no colour change at all, either slightly pink or fully pink. Whether it turned fully pink or slightly pink, it is a fact that now the solution is colourless. 11. The complainant is definite in his evidence that when he placed the currency notes under a file seen on the seat of the car, the accused immediately took it and pushed it to the file, with the object of being concealed. If so, there is no explanation why the solution did not turn fully pink when the hand of the accused was dipped in it. All the witnesses including the detecting officer stated that the solution turned only slightly pink Crl.Appeal No.265 of 2011 13 but the fact is that the solution is now colourless. It is really doubtful whether the versions of the complainant can be accepted by the Court. 12. Even according to the complainant the taintend money was not accepted by the accused in his hands. The Court cannot simply brush aside, or reject the defence in the present circumstances where the tainted money was admittedly not accepted by the accused in his hands. This is not a case where there is any other corroborating evidence to prove the alleged demand and acceptance. In the absence of such corroborating evidence proving the essentials, the solitary evidence of the complainant cannot be fully accepted by the Court when there is something to taint it with some doubt. Here, the story of the complainant that he tendered the amount as illegal gratification, or that the accused accepted it indirectly is really suspicious. 13. Admittedly, the tainted money in this case was not seized or recovered from the possession of the accused or from the person of accused directly. In such a Crl.Appeal No.265 of 2011 14 situation, there must be clear and convincing evidence proving voluntary acceptance of the money by the accused. In a case where there is no evidence proving direct acceptance, the prosecution must prove acceptance indirectly. There is reason to believe that the accused had not in fact taken the money or touched it with his hands. If so, it will have to be suspected whether the version of the complaint is true that the accused had asked him, or gestured, to put the amount under the files. That means, the story of indirect acceptance told by the complainant is not fully acceptable or believable. The resultant finding is that vountary acceptance of illegal gratification by the accused stands not proved. There is nothing to prove acceptance directly or indirectly. In the above situation, the decisions of the Honourable Supreme Court on the point will have to be applied, and the benefit of the doubt will definitely have to be given to the accused. 14. As already stated, there is no independent or corroborative evidence proving the alleged demand Crl.Appeal No.265 of 2011 15 and acceptance. In a case like this where the complainant's evidence is doubtful, or where there is no material to prove acceptance of tainted money by the accused directly, there must be some corroborative evidence proving the indirect acceptance alleged by the complainant. PW6 was the Office Attendent of the accused at the relevant time, and he had also been in the car at the time of the alleged payment. But this witness did not support the prosecution. When the prosecution could not elicit the required answers from him he was declared hostile, and was cross examined with the permission of the Court. I fail to understand why the witness was declared hostile and cross examined by the prosecution. There is nothing to show that this witness had seen payment of money by the complainant, or acceptance of money by the accused. He was on the front seat of the car, and so he could not have in fact witnessed such payment or acceptance. The driver of the RDO at the relevant time was cited as a witness but, he was not examined by the prosecution. He was examined Crl.Appeal No.265 of 2011 16 as DW1 in defence. This witness has to an extent, supported the accused. His evidence is that the complainant in this case joined the RDO on his way, and he made a request to the RDO to visit a particular place of unauthorised trespass. But the RDO told him that he had no time to make such a visit, and that he was busy with some other official functions. Within no time a TATA Sumo vehicle was found blocking the RDO's car on the way, and some police officers took the car to the Agricultural office at Harippadu. This witness is definite that he had not seen or heard anything vicious inside the car, and that the complainant in fact joined the RDO to make some other request. Ofcouse, it is true that negative aspects cannot be proved. So, the purpose of examination of DW1 is not to prove that the RDO had not received anything from the complainant. He was examined to prove another circumstance that it was for some other purpose the complainant joined the RDO on the way. 15. On an appreciation of the evidence as discussed above, I find that voluntary acceptance of Crl.Appeal No.265 of 2011 17 illegal gratification by the accused stands not satisfactorily proved in this case. Solely on the basis on the evidence given by the complainant which is tainted some doubts, I am not inclined to convict the accused. I find that the prosecution case stands not proved beyond reasonable doubts, by satisfactory evidence proving the alleged indirect acceptance of illegal gratification. In the above circumstances, the appellant is entitled for acquittal. In the result, this appeal is allowed. The appellant is not found guilty of the offences under Sections 7 and 13(2), read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Accordingly, he is acquitted of the said offences in appeal under Section 386 (b)(1) Cr.P.C. He will stand released from prosecution, and bail bond executed by him will stand discharged. Sd/- **P.UBAID,JUDGE** rkj //TRUE COPY// P.A. TO JUDGE