K. Prem Rajan @ Preman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **CRL.A.No. 1262 of 2007** **------------------------** **CC 7/2002 OF COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE** **....** **APPELLANT(S)/ACCUSED:** **--------------------** **K.PREM RAJAN @ PREMAN, S/O. KRISHNAN, KAVUNGAL HOUSE, MANASSERY, THAZHEKKODE AMSOM, DESOM, KOZHIKODE.** **BY ADV. SRI.S.SREEKUMAR** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2016 THE COURT ON 07-06-2016, DELIVERED THE FOLLOWING:** **msv/** **P.UBAID, J.** **--------------------------------------Crl.A No.1262 of 2007 ---------------------------------------** Dated this the 7[th] day of June, 2016 ## **J U D G M E N T** The appellant herein was an Overseer in the Electrical Section, Thiruvambadi, of the Kerala State Electricity Board, in November, 2000. On the allegation that he accepted an amount of 200/- as illegal gratification from one Abdullakutty₹ for giving necessary instructions regarding the amount of deposit to be made by him on an application submitted by him for electricity connection to his dwelling house, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge, (Vigilance), Kozhikode in C.C No.7/2002. 2. The prosecution case is that the accused demanded bribe first on 14.11.2000 when the complainant met him in connection with the application earlier made by him for electricity connection, he repeated the demand on 23.11.2000, and on 25.11.2000 he accepted the amount at his office, at about 11.30 am. The written complaint alleging demand for bribe was made by Abdullakutty before the Deputy Superintendent of 2 Crl.A No. 1262 of 2007 Police, Vigilance and Anti-Corruption Bureau, (VACB), Kozhikode at about 8 am. on 25.11.2000, though Abdullakutty had met the Dy.S.P on 24.11.2000 itself with a complaint orally. On the written complaint made on 25.11.2000, the Dy.S.P registered a crime and arranged a trap. The amount of 200/- brought by the₹ complainant was received as per mahazar, it was treated with phenolphthalein powder and the complainant was instructed to meet the accused at his office and make payment. Accordingly, the complainant met the accused at his office at about 11.20 am. on 25.11.2000 and he made payment of the amount when the Overseer demanded the amount. On getting the pre arrest signal, the Vigilance team led by the Dy.S.P reached there, seized the phenolphthalein tainted currency from the possession of the accused and arrested the accused on the spot. After investigation, the VACB submitted final report in court. 3. The accused pleaded not guilty to the charge framed against him by the trial court under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act (for short 'the P.C Act). The prosecution examined seven witnesses including the complainant, the trap witnesses and also the detecting officer. The material objects including the tainted money were Crl.A No. 1262 of 2007 3 identified during trial as MO1 to MO8. Ext.X1 series were also marked during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances and projected a defence that as an Overseer he had nothing to do with cash deposit, and he had no reason or occasion to give any instruction to the complainant as regards deposit, the amount required, or the date of deposit. The defence also examined two witnesses, of whom one is an Assistant Engineer who gave evidence that as Overseer the accused had no role or involvement in matters connected with money deposit or the instructions regarding deposit. His evidence is that only the Assistant Engineer is the proper authority to deal with those aspects, and the necessary instructions would always be given by the Assistant Engineer, and not by the Overseer. As regards the trap, the accused projected a defence that he was viciously trapped on a false complaint made by the complainant due to some previous enmity. On an appreciation of the evidence, the trial court found the accused guilty. On conviction he was sentenced to undergo rigorous imprisonment for one year each and to pay a fine of 1,000/- each under Sections 7 and 13(2) r/w₹ Section 13(1)(d) of the P.C Act by judgment dated 29.6.2007. 4 Crl.A No. 1262 of 2007 Aggrieved by the said judgment of conviction the accused has come up in appeal. 4. When the appeal came up for hearing the learned counsel for the appellant submitted that the appellant is entitled for acquittal on factual as well as legal grounds. As regards the legal aspects, the learned counsel submitted that the prosecution sanction in this case is not properly and legally proved, and so the whole prosecution is barred under Section 19 (4) of the P.C Act. On factual aspects the learned counsel submitted that the evidence given by the complainant is unacceptable without independent corroboration, that the evidence given by the complainant is really suspicious, and that the accused was viciously trapped by the complainant due to some previous enmity. On the other hand the learned Public Prosecutor submitted that there is nothing to doubt about the truth or genuineness of the evidence given by the complainant on facts, and that the prosecution sanction is proved by the investigating officer. 5. Of the seven witnesses examined by the prosecution, PW1 is the complainant Abdullakutty, PW7 is the Deputy Superintendent of Police who arranged the trap, Crl.A No. 1262 of 2007 5 detected the offence and also investigated the case, PW2 and PW3 are the trap witnesses arranged by the Dy.S.P, PW4 is an attestor to the Ext.P8 observation mahazar, PW5 is the KSEB Lineman and PW6 is the Village Assistant who proved the Ext.P11 sketch of the scene of incident. The main evidence is that of the complainant. To prove the essentials like demand and acceptance the prosecution does not have any other evidence than that of the complainant. That is why the learned counsel submitted that the evidence of the complainant in this case cannot be accepted without independent corroboration, in view of the inconsistencies and doubts surrounding his evidence and the complaint. 6. First let me come to the legal aspect argued by the learned counsel. Ext.P15 is the prosecution sanction obtained under Section 19 of the P.C Act. This was just marked through the investigating officer. The prosecution has cited the officer who granted the sanction, but he was not examined during trial. The prosecution does not have any explanation why the sanctioning authority was not examined to prove the prosecution sanction. In **CBI v. Asok Kumar Aggarwal (AIR 2014 SC 827)** the Hon'ble Supreme Court held that the Crl.A No. 1262 of 2007 6 sanctioning authority has to do complete and conscious scrutiny of the whole record placed before it for sanction under Section 19 of the P.C Act and that the sanction order should show that the authority has considered all the relevant facts and has applied its mind independently to the facts in the process of granting sanction. In this case it is not known what are the materials placed before the authority, or what all materials were perused or considered by the authority. It is also not known whether the authority had applied the mind independently to the facts of the case in the process of granting sanction. In view of the guidelines made by the Hon'ble Supreme Court in **CBI v. Asok Kumar Aggarwal** it will have to be found in this case that the evidence given by the investigating officer just marking the prosecution sanction is really worthless and that the whole prosecution is barred under Section 19 of the P.C Act. 7. In **Antony Cardoza v. State of Kerala (2011** **(1) KLT 946)** a learned Single Judge of this Court held that the prosecution sanction granted under Section 19 of the P.C Act will have to be proved by the authority who issued the sanction order, and not by somebody else. This Court held that consideration of all the relevant materials and documents, and Crl.A No. 1262 of 2007 7 independent application of mind to the facts of the case is something to be proved by the authority who granted sanction, and this responsibility cannot be taken over by somebody else. Following **Antony Cardoza** and other decisions and also the guidelines made by the Hon'ble Supreme Court this Court has recently settled the position as regards prosecution sanction, that the sanction granted by the authority under Section 19 of the P.C Act will have to be proved by the person who issued the sanction order, and that the question of somebody else familiar with the signature of the authority proving sanction comes only when the prosecution sanction can claim some sort of sanctity or immunity under the law. **Antony Cardoza** was a case where the prosecution brought an Under Secretary to Government to prove the prosecution sanction granted by a Principal Secretary. In **Prakash Pai v. State of Kerala (2015(4) KHC 557)** and the other decisions this Court held that the prosecution sanction obtained under Section 19(1) of the P.C Act will have to be proved by the person, who issued the sanction order, and that the investigating officer is not at all the competent person to prove such a sanction. In this case I find that Ext.P15 sanction stands not properly and legally proved. The prosecution has no 8 Crl.A No. 1262 of 2007 explanation why the person who granted the sanction was not examined to prove the sanction. In the absence of any evidence proving Ext.P15 sanction properly and legally I find that the prosecution in this case is barred under Section 19 of the P.C Act, and on this legal ground itself the accused is entitled for acquittal. 8. It is well settled that simply on the basis of seizure of tainted money from the possession of the accused, he cannot be convicted under Section 7 and 13(2) of the P.C Act. This Court, and also the Hon'ble Supreme Court, have settled the position that there must be clear evidence proving the essentials like demand and acceptance for a conviction under Section 7 or Section 13(2) r/w 13(1)(d) of the P.C Act. Here the prosecution allegation is that the accused demanded bribe first on 14.11.2000, he repeated the demand on 23.11.2000, and accepted the amount on 25.11.2000. The prosecution does not have any other evidence than that of the complainant to prove the essentials. PW2 and PW3 are the trap witnesses arranged by the detecting officer. These persons are not witnesses to the acceptance of illegal gratification. Their evidence is only regarding the seizure of tainted money and also regarding the 9 Crl.A No. 1262 of 2007 pre trap and post trap procedures. There is no explanation why any of these witnesses was not instructed to accompany the complainant to the office of the accused to witness the alleged acceptance. The evidence of the complainant is that he alone met the accused at his office and paid the tainted money. There is no reason or explanation why he was not accompanied by any of the trap witnesses. As regards demand also the prosecution does not have a case that anybody other the complainant had seen or heard the accused demanding money from the complainant. Thus there is only the evidence of the complainant to prove those aspects. The question is whether this uncorroborated evidence can be accepted by the court. 9. Of course in the Ext.P1 complaint, the complainant has stated the dates 14.11.2000 and 23.11.2000. A complaint by itself will not have any evidentiary valued. As a signed statement, its use is only to corroborate or contradict the maker of the statement. Unless there is corroboration by way of direct evidence regarding the essentials and material aspects contained in the complaint, no legal value can be attached the complaint. It is pertinent to note that in evidence the complainant has not stated anything about the dates on which Crl.A No. 1262 of 2007 10 the demand was made by the accused. He does not have a specific case in evidence that the demand was made by the accused on 14.11.2000, or that the demand was repeated on 23.11.2000. The two dates are conspicuously absent in the examination in chief of the complainant. When the evidence given by the complainant is totally silent regarding the date of demand or way of demand, the evidence given by the complainant on such aspects cannot be accepted without independent corroboration. The Assistant Engineer examined by the accused as a defence witness has categorically stated that it is within the jurisdiction of the Assistant Engineer, and also within his powers to decide the quantum of caution deposit, and to give instructions regarding the date on which the deposit should be made. The Assistant Engineer is definite that an Overseer has no role at all in such matters. Just because some money was seized from the possession of the accused, he cannot be found guilty by the court, when satisfactory and clear evidence is not there proving the essentials. The detecting officer could very well have instructed one of the trap witnesses to accompany the complainant and to witness the acceptance of money. Thus I find that the prosecution has not properly proved 11 Crl.A No. 1262 of 2007 the case beyond reasonable doubts. I have already found that on legal ground itself the appellant is entitled for an acquittal. In the above situation this Court is inclined to allow the appeal. In the result, this appeal is allowed. The conviction and sentence against the appellant under Sections 7 and 13(2) r/w Section 13(1)(d) of the P.C Act in C.C. No.7/2002 of the court below will stand set aside on the finding that the appellant is not proved to be guilty of those offences, and accordingly the appellant is acquitted of those offences in appeal under Section 386(b)(1) Cr.P.C. The bail bond, if any, executed by him will also stand discharged. **Sd/P.UBAID JUDGE** //True Copy// P.A to Judge ab