Dr. A.P. Abdul Khader v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937** ## **CRL.A.No. 1888 of 2009 (A)** **---------------------------** **CC 40/2002 OF ENQUIRYCOMMISSIONER & SPECIAL COURT, KOZHIKODE.** **.............** **APPELLANT/ACCUSED: ----------------------------------** **DR.A.P.ABDUL KHADER, S/O. AMMEDKUTTY HAJI, SANTHINAGAR HOUSING COLONY, SULTAHN BATHERY, (ASSISTANT SURGEON), GOVERNMENT TALUK, HEADQUARTERS HOSPITAL, SULTHAN BATHERY.** **BY SRI.M.K.DAMODARAN (SENIOR ADVOCATE) ADVS. SRI.ALAN PAPALI** **SRI.GILBERT GEORGE CORREYA** **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA,(THE DY.S.P, VACB, WAYANAD) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06-10-2015,THE COURT ON 10-03-2016 DELIVERED THE FOLLOWING:** **mbr/** ## **P.UBAID, J. ~~~~~~~~~~ Crl.A No.1888 of 2009 ~~~~~~~~~~~ Dated this the 10[th] March, 2016** ## **J U D G M E N T** The appellant herein was an Assistant Surgeon in the Government Taluk Headquarters Hospital, Sulthan Bathery in the year 2000. One Omana, wife of Kuttappan had continuous treatment under the appellant at his clinic at Sulthan Bathery, and also at the Government Hospital. On 18.7.2000, Kuttappan filed a complaint before the Deputy Superintendent of Police, Vigilance and Anti-Corruption Burea (VACB), Waynad, that on 12.7.2000, the appellant demanded an amount of 500/- from him as illegal₹ gratification for conducting Post Partum Sterilization (PPS) on his wife Omana, that he reduced the claim to 300/- on₹ 17.7.2000, that he repeated the demand at about 11 a.m on 18.7.2000, and that he was directed to come with the amount in the afternoon. On the said complaint, the VACB registered a crime against the appellant and arranged a trap. The amount of 300/- brought by Kuttappan was₹ treated with phenolphthalein, and after demonstrating **Crl.A No.1888 of 2009** **2** phenolphthalein test to the complainant and others, Kuttappan was instructed to meet the Doctor at the Hospital and make payment. Accordingly, Kuttappan went to the hospital with the amount, but the Doctor could not be found there. At about 5 p.m, the Doctor came at his private clinic where Kuttappan met him at about 5.30 p.m and made payment of the phenolphthalein tainted currency. Within no time, the vigilance team reached there, on getting signal from the complainant, seized the tainted currency, and arrested the Doctor. After investigation, the VACB submitted final report before the Special Court (Vigilance) Kozhikode. Cognizance on final report was taken as C.C 40/2002. 2. The appellant/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 (for short “the P.C Act”). The prosecution examined 13 witnesses including the complainant Kuttappan, and also marked Exts.P1 to P23 documents including Kuttappan's **Crl.A No.1888 of 2009** **3** complaint, and the prosecution sanction obtained under Section 19 of the P.C Act. The material objects including the tainted currency were identified as MO1 to MO7 during trial. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances, and submitted that money was in fact received by him as his fee as part of private consultation, and it was not accepted as illegal gratification, as the prosecution would allege. The complainant Kuttappan turned fully hostile during trial. The prosecution did not examine anybody to prove the prosecution sanction granted by the Government Secretary. The other witnesses consistently stated that money was accepted by the accused at his private clinic, and not at the hospital. The accused also examined DW1 to prove his defence case. 3. On an appreciation of the entire evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years each and to pay a fine of 2000/- each under Sections 7₹ and 13 (2) read with Section 13 (1) (d) of the P.C Act by **Crl.A No.1888 of 2009** **4** judgment dated 17.8.2009. Aggrieved by the judgment of conviction, the accused has come up in appeal. 4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution is barred under Section 19 of the P.C Act for the reason that the prosecution sanction obtained by the VACB under Section 19 of the P.C Act stands not proved, and he also submitted that on facts also, the appellant is entitled for acquittal because there is no evidence to prove the essentials in this case. On the other hand, the learned Public Prosecutor submitted that the prosecution sanction stands well proved by the Investigating Officer, and that there is other evidence to prove the essentials, though the complainant turned hostile to the prosecution. 5. PW11 is the Investigating Officer. Ext.P20 sanction granted by the Principal Secretary to the Government was marked through PW11. This Court has settled in so many decisions that a prosecution sanction obtained under Section 19 of the P.C Act will have to be proved by the person who issued the sanction, and that **Crl.A No.1888 of 2009** **5** somebody else cannot come and prove it. This Court has also settled that the Investigating Officer is not at all the competent person to prove a sanction granted under Section 19 of the P.C Act. Ext.P20 is the sanction granted by the Principal Secretary to the Government. The Principal Secretary was cited as a witness by the prosecution. There is no explanation why the prosecution did not examine the person who issued the Ext.P20 sanction. Thus, I find that Ext.P20 sanction stands not properly proved in this case by the person who issued the sanction, and that the prosecution is barred under Section 19 of the P.C Act. On this ground itself, the appellant is entitled for acquittal. 6. Now let me see whether the prosecution has proved the case on facts. PW1 is the complainant, who made the Ext.P1 complaint against the appellant. When examined in court, he disowned his complaint and stated that the appellant had not at any time demanded anything as illegal gratification from him, and he had also not paid anything to the Doctor in connection with his wife's PPS operation at the Government Hospital. The definite defence **Crl.A No.1888 of 2009** **6** case projected by the accused is that money was in fact accepted by him as part of his private practice, and it was accepted at his clinic outside the hospital premises. PW1 stated in cross-examination that his wife had consultation with the appellant on many occasions, and he had given fee to the Doctor on such occasions of private consultations. He stoutly denied the prosecution case that he had made payment of illegal gratification to the Doctor, or that the Doctor had demanded anything from him in connection with the operation conducted at the Government Hospital. In **Vinod Kumar v. State of Punjab [ AIR 2015 SC 1206]** , the Hon'ble Supreme Court held that the mere fact that the complainant turned hostile during trial would not result in collapse of the whole prosecution case. It was held that in such cases, the prosecution can prove the essentials by other evidence possible. In this case, the prosecution relies on the complainant alone to prove demand and acceptance. But he turned fully hostile. The prosecution has cited other witnesses besides the complainant to prove the essentials, but nobody was examined by the **Crl.A No.1888 of 2009** **7** prosecution. 7. PW2 is the trap witness arranged by the VACB. His evidence is only regarding recovery of the tainted money from the possession of the accused at his clinic outside the Government Hospital premises. This witness and the Detecting Officer have given evidence regarding the pre-trap and post-trap procedures and also proving the recovery of the tainted money, and the arrest of the accused. In so many decisions, the Hon'ble Supreme Court has held that merely on the basis of recovery of the tainted money, an accused cannot be found guilty by the court. Even in the latest decisions, in **P.Sathyanarayana Murthy v. State of Andhra Pradesh [** 2015) 10 SCC 152] and **Selvaraj v. State of Karnataka [2015 10 SCC 230]** , the Hon'ble Supreme Court reiterated the earlier decisions that in a case where demand and acceptance is not proved, the accused cannot be convicted by the court merely on the basis of the recovery of tainted money from his possession. 8. PW2 examined as independent witness by the **Crl.A No.1888 of 2009** **8** prosecution is not a witness to prove the essentials. Other than the evidence of the complainant, there is nothing to prove demand in this case, but he turned hostile. The independent witness has no case that he had witnessed payment of money or acceptance of money. His evidence shows that the tainted money was in fact accepted by the Doctor at his clinic outside the Government Hospital premises. It is true that in such cases, where money is received outside the hospital premises, the accused can be convicted, only if there is evidence to show that such money was accepted as part of the treatment provided to the patient at the Government Hospital. PW2 does not know anything about the nature of the payment, and he cannot say whether it was paid as part of the treatment provided to the complainant's wife at the hospital. He does not know whether it was received by the Doctor as part of his private practice. The evidence of the Detecting Officer is that the tainted money was recovered by the police from the possession of the appellant at his private clinic outside the Government hospital premises. In such a case where **Crl.A No.1888 of 2009** **9** money was received at his clinic by the Doctor outside the hospital premises, the burden would be heavy on the prosecution to prove that the money was accepted as part of the treatment provided to the complainant's wife at the hospital. If there is something to doubt, or if there is something to indicate that the money was accepted by the Doctor at his private clinic as part of private practice, a prosecution is not at all possible under the P.C Act. There is no prohibition regarding private practice of the Doctors attached to the Government Hospitals. If a doctor receives or accepts money at his private clinic as part of private practice, he cannot be prosecuted under the P.C Act, on the allegation that money was accepted as illegal gratification. This is the position settled by this Court very recently. 9. In this case, there is reason to believe that the tainted money in this case was accepted by the Doctor from the complainant as part of his private practice. Of course, the complainant admitted his signature in the complaint, but he disowned the contents of the complaint. He is definite that he had made payment of fee as part of his **Crl.A No.1888 of 2009** **10** wife's private consultation at the clinic on many occasions. The tainted money was admittedly recovered from the possession of the accused at his private clinic as stated by the Detecting Officer and the trap witness. In the absence of definite evidence proving the essentials, that the accused had demanded anything illegally for the treatment of the wife of the complainant at the Government Hospital, or that money was in fact accepted by the Doctor as part of the treatment provided to the complainant's wife at the hospital, there cannot be a conviction against the appellant under the provisions of the P.C Act. I find that the prosecution has failed to prove the essentials in this case. Even otherwise, I find that the appellant is entitled for acquittal because the prosecution is barred under Section 19 of the P.C Act. In the result, this appeal is allowed. The conviction and sentence against the appellant under Sections 7 and 13 (2) read with Section 13 (1) (d) of the P.C Act in C.C 40/2002 of the court below will stand set aside. The appellant is found not guilty of those offences, and he is **Crl.A No.1888 of 2009** **11** acquitted of the said offence in appeal, under Section 386 (b) (i) of Cr.P.C. The bail bond, if any, executed by the appellant will stand discharged. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge