J. Thomas v. C.B.I. & State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **CRL.A.No.1419 OF 2004(A)** **C.C.NO.9 OF 2002 OF SPECIAL COURT (SPE/CBI)-II, ERNAKULAM** ## **APPELLANT : ACCUSED** **J.THOMAS, S/O.GEORGE, PALAMOOTIL, KIZHAKKETHIL, MANKANKUZHI P.O., MAVELIKARA, ALAPPUZHA DIST.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.DELVIN JACOB MATHEWS SRI.GEORGE PHILIP SRI.RAJU RADHAKRISHNAN** **RESPONDENTS : COMPLAINANT & STATE :** **1 C.B.I. COCHIN REPRESENTED BY THE STANDING COUNSEL FOR THE C.B.I. 2 STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **BY SRI.S.SREEKUMAR, SC, FOR CBI** ## **OTHER PRESENT:** **SRI. SASTHAMANGALAM S. AJITHKUMAR-SC CBI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.8.2019, THE COURT ON 05.09.2019 PASSED THE FOLLOWING:** **CRL.A.No.1419 OF 2004(A)** 2 ## **JUDGMENT** ## **Dated this the 5th day of September 2019** The appellant herein challenges the conviction and sentence against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) in C.C.No.9 of 2002 of the Special Court (SPE/CBI)-II, Ernakulam. He was the Junior Telecom Officer (JTO) of the Telecom Exchange at Chennithala in May 2002. One Mohanan had applied for telephone connection in 1999, but connection was sanctioned only in April 2002. The appellant faced trial on the allegation that on 27.05.2002, at his office, the accused accepted an amount of Rs.500/- as illegal gratification from the son of the said Mohanan pursuant to the demand made by him on 23.05.2002, and 25.5.2002, for Rs.500/- as a reward for granting telephone connection to Mohanan. The son of Mohanan made a complaint before the Additional Superintendent of Police, CBI, Kochi on 27.5.2002 alleging that bribe was demanded by the accused for granting telephone connection to his father, and that demand for bribe was made by him on 23.5.2002 when he met the accused as instructed by a telephone mechanic who came to his house on 23.5.2002. After two days, he again met the accused, and made a request to grant connection, but the accused repeated the demand for Rs.500/-, and asked him to bring the amount on 27.5.2002. As Mohanan was not inclined to pay bribe to **CRL.A.No.1419 OF 2004(A)** 3 the JTO, he instructed his son to file a complaint, and accordingly the complaint was filed by the son. On the said complaint, the CBI registered a crime and laid a trap, and at about 4 p.m. on 27.5.2002, the CBI officials arrested the accused with the tainted money. The accused was trapped by an Inspector of the CBI as directed by the Additional Superintendent of Police, CBI, and after the trap, investigation was made by a Deputy Superintendent of CBI. After investigation, he submitted final report in Court. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined 17 witnesses, and proved Exts.P1 to P31 documents. When examined under Section 313 Cr.P.C., the accused projected a defence that he was dishonestly trapped by the complainant with the help of the CBI Officials, and that the complainant brought a false complaint against him for the reason that he had declined the request of the complainant and others for donation for a club. His case is that he has been doing charity works, and he was the Chairman of such a charity organization. The complainant is a member of a club at Chennithala, and for the said club the complainant and his associates had demanded a donation of Rs.5,000/-, which he declined. He also submitted that he had no occasion to demand money for telephone connection because, Mohanan had already waived his request. The accused would practically admit the seizure of Rs.500/- **CRL.A.No.1419 OF 2004(A)** 4 from his possession as tainted money, subject to the contention otherwise, or the defence projected by him. In defence, the accused examined two witnesses, and proved Exts.D1 to D4 documents. The MO1 to MO11 properties including the tainted money seized from the possession of the accused were also identified during trial. 3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for six months, and to pay a fine of Rs.2,000/under Section 7 of the PC Act, and to undergo another term of rigorous imprisonment for one year, and to pay a fine of Rs.5,000/- under Section 13(1)(d) read with Section 13(2) of the PC Act. Aggrieved by the judgment of conviction dated 12.8.2004, the accused has come up in appeal. 4. On hearing both sides, and on a perusal of the materials, I find no reason for interference in the findings or the conviction made by the court below. The complainant at whose instance the CBI initiated prosecution, and also the public servant brought by the CBI as a trap witness have fully supported the prosecution case. The CBI Inspector who laid the trap has also given convincing evidence proving the trap, including the pre-trap and post trap procedures. PW17 is the Deputy Superintendent of Police, CBI who investigated the case. The defence could not bring out anything to show that there was anything wrong with the investigation. I feel it not necessary to discuss **CRL.A.No.1419 OF 2004(A)** 5 the evidence of PW17 regarding the investigation process including the seizure of some important documents. I find that there was no flaw or irregularity or illegality in the investigation conducted by PW17. 5. PW16 has proved the Ext.P28 prosecution sanction granted under Section 19 of the Prevention of Corruption Act. His evidence shows that he granted the sanction after examining all the relevant documents, and also after applying his mind independently to the facts. Ofcourse, the defence does not practically have any dispute regarding the Ext.P28 sanction, or the manner in which sanction was granted by PW16. 6. The important witnesses examined by the prosecution are PW1 and PW3. PW2 is only the person who prepared the Ext.P1 complaint. The prosecution has also proved the application submitted by Mohanan for telephone connection. PW1 is the son of Mohanan, and the Ext.P1 complaint in this case was made by him. PW3 is the public servant who witnessed the trap. He had been with the complainant all through out the trap procedure. PW4 to PW6 are the Sub Divisional Engineers of the Telephone Exchange, and these witnesses have given evidence regarding the procedure for granting telephone connection. They have also proved the documents produced by them before the Investigating Officer. These witnesses have given evidence that after orders from the Sub Divisional Engineer, telephone connection on application would be given by the Junior Telecom Officer. One point **CRL.A.No.1419 OF 2004(A)** 6 raised by the defence is that JTO is not the authority to grant telephone connection, and so there was no occasion for the JTO to receive bribe for granting telephone connection. But the evidence of the Sub Divisional Engineers is otherwise that as sanctioned by the Sub Divisional Engineer, telephone connection would be given by the JTO. Ofcourse, it is true that the person who applied for telephone connection is not examined by the prosecution. However, his application stands well proved, and his son who made the complaint, and witnessed the trap, has been examined. 7. The evidence given by PW1 is quite consistent with the statements in the Ext.P1 complaint. His consistent case is that illegal gratification was first demanded by the accused at his office on 23.5.2002 when he met the accused as instructed by a mechanic who came to meet his father on 23.5.2002. PW7 is said to be the said mechanic. He did not support the prosecution. The case of PW1 is that the mechanic instructed him or his father to meet the JTO for getting telephone connection immediately, and accordingly, as instructed by the father, PW1 met the accused at his office on 23.5.2002. The accused told PW1 that if telephone connection is immediately required, he would have to pay Rs.500/-. PW1 made a bargain, and after two days, he again met the accused at his office. At that time also, the accused repeated the demand, and asked PW1 to bring the amount on 27.5.2002. He was also asked not to pay the amount directly, and the **CRL.A.No.1419 OF 2004(A)** 7 instruction was to place the amount on the table or inside the table drawer. PW1 told his father about this, but his father was not inclined to pay bribe. Accordingly, as instructed by the father, PW1 met the Additional Superintendent of Police, CBI, Kochi, and made the Ext.P1 complaint. The complaint was prepared by his friend Sunil Kumar. He is PW2. This witness has identified and proved the Ext.P1 complaint prepared by him. 8. PW1 and PW3 have given definite and consistent evidence proving the trap including the pre trap and post trap procedures. The trap was arranged by PW15. He has also given evidence regarding the details of the trap procedure. PW1 and PW3 have stated that phenolphthalein test was demonstrated by PW15 after reading over the Ext.P1 complaint, the amount of Rs.500/- brought by PW1 was accepted as per a mahazar by PW15, and the currency notes were smeared with phenolphthalein. At about 1.00 p.m. the trap party left to the CBI office, and reached the office of the accused at about 3.30 p.m. When PW1 and PW3 met the accused, he asked whether PW1 was ready with the amount. When he answered that he has brought the amount, the accused made gestures to place the amount on a file on the table. Accordingly, he placed the amount on the file, and within no time, the accused took it in his hands, and put it in his shirt pocket. Under the pretext of preparing an application for transfer of telephone connection, PW1 and PW3 came out, and PW1 made the pre arranged **CRL.A.No.1419 OF 2004(A)** 8 signal. On getting the signal, the CBI team led by PW15 reached the office, and interrogated the accused. The accused admitted the acceptance of money, and it was seized from his shirt pocket by PW15. Phenolphthalein test conducted on the spot turned positive, and the accused was arrested on the spot by PW15. The File on which the tainted money was placed by the complainant, the hands of the accused, and also the shirt pocket of the accused were subjected to phenolphthalein test, and every test gave positive result. Another amount of Rs.850/- was also seized by PW15 from the possession of the accused, and when asked about this by PW15, the accused stated that it was the days collection. It has come out in evidence that on coming to know of the accused being trapped and arrested some members of the public celebrated it by exploding crackers. This circumstance gives an indication regarding the accused and his antecedents. 9. The defence could not bring out anything in the crossexamination of PW1 and PW3 to discredit their evidence regarding the trap procedure. Nothing could be brought out from the crossexamination of PW15 also. All the witnesses stood firm to their versions regarding the trap procedure, and all the witnesses affirmed that the tainted money in this case was seized from the shirt pocket of the accused. 10. It is well settled that for a successul prosecution under the PC Act, or specifically under Section 7 of the PC Act, the prosecution **CRL.A.No.1419 OF 2004(A)** 9 must prove demand and acceptance. It is well settled that the twin elements of demand and acceptance are the essentials for a prosecution, and without proof of these essentials there cannot be a conviction. I feel it not necessary to quote the decisions on the point because, it is the well settled position. It is also well settled that merely on the basis of recovery of tainted money from his possession, a public servant cannot be found guilty or convicted. For a conviction in this case under Sections 7 and 13(1)(d) of the PC Act, there must be clear and satisfactory evidence to prove that illegal gratification was demanded by the accused, that it was accepted by him, and the said amount was seized from his possession. All these things are well proved by the evidence of PW1, PW3, and PW15. To prove acceptance, there is the evidence of PW1 and PW3. The fact of seizure of the tainted money by PW15 would also prove acceptance. Ofcourse, it is true that there is only the evidence of the complainant to prove demand. On an analysis of the evidence given by him, I find that his evidence is trustworthy and acceptable even without corroboration. Thus demand also stands well proved. 11. This is a case where Section 20 of the PC Act is applicable. It contains a presumption that where, it is proved in any trial of an offence punishable under Section 7 or under Section 11, or Clauses (a) or (b) of Sub Section 1 of Section 13 of the PC Act that the accused has accepted or obtained any gratification other than legal **CRL.A.No.1419 OF 2004(A)** 10 remuneration, or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted it as a motive or reward, such as is mentioned in Section 7 of the Act. 12. Section 20 of the PC Act is quite clear that in a case where acceptance of any valuable thing or any gratification other than legal remuneration by a public servant is proved, the legal presumption will come to application, and the public servant will have to rebut the presumption. This is the position settled long back by Supreme Court in **T.Shankar Prasad v. State of Andra Pradesh [2004 Supreme Court Cases (Cri) 870]** . In this case, the accused would try to rebut the presumption by projecting a defence that he was viciously trapped for the reason that a donation of Rs.5,000/- demanded by PW1 and his associates for their club was declined by the accused who was the main office bearer of a trust involved in public service and charity activities. Such a suggestion was stoutly denied by PW1. The said trust of the accused is at Pathanamthitta, whereas PW1 is a native of Chennithala in Alappuzha District. It is really unbelievable and improbable that for a club at Chennithala, PW1 went all the way from Chennithala to Pathanamthitta to demand some donation from the accused. Seizure of tainted money from the shirt pocket of the accused is well proved by the evidence of PW1, PW3, and PW15. The accused has no case that it was thrust into his pocket by PW1. Another shabby explanation is that after PW1 left the chamber, the accused saw some currency notes on **CRL.A.No.1419 OF 2004(A)** 11 the table, and thinking that it was left by PW1, or forgotten to be taken the accused took it, and put it in his pocket. This is also unbelievable and unacceptable. Thus, I find that the definite presumption against the accused under Section 20 of the PC Act stands not in any manner rebetted by the accused. Ofcourse, it is true that what is presumed under Section 20 of the PC Act is not the guilt, but, only acceptance of illegal gratification. Once acceptance of illegal gratification is proved, and the presumption is also applied, it would lead to a conclusive finding that illegal gratification was demanded and accepted by the accused. I find that the prosecution case stands well proved by the definite and consistent evidence given by PW1, PW3 and PW15. Ofcourse, PW13 and PW14 turned hostile. In fact, these two witnesses have nothing material to furnish in favour of the prosecution. The case stands even otherwise proved by the evidence of the other material witnesses. The prosecution has well proved demand of illegal gratification by the accused and also acceptance of illegal gratification from PW1. The essentials for the offences under Sections 7 and 13(1) (d) of the PC Act are well proved in this case. Thus, I find that the accused was rightly found guilty and convicted by the trial court. 13. Now the question of sentence. The trial court has imposed only the minimum sentence in this case. Section 13(2) of the PC Act does not authorise any deviation from the rule of minimum sentence. Thus, I find that the sentence also does not require **CRL.A.No.1419 OF 2004(A)** 12 interference in appeal. In the result, this Appeal is dismissed, confirming the conviction against the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act in C.C.No.9 of 2002 of the Special Court (SPE/CBI)-II, Ernakulam. Sd/rkj **P.UBAID, JUDGE**