Madhava Warrier v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **CRL.A.No. 43 of 2012 (A) -------------------------** **AGAINST THE JUDGMENT IN C.C NO. 3/2004 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE DATED 27-12-2011** **APPELLANT:** **---------** **MADHAVA WARRIER AGED 65, S/O.SALU WARRIER, THERTHALA HOUISE, KANOOL, MORAZHA AMSOM, (VILLAGE MAN, MORAZHA VILLAGE).** **BY ADVS.SRI.B.RAMAN PILLAI** **SRI.R.ANIL SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND** **RESPONDENT:** **-----------** **STATE** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.4.2017, THE COURT ON 30.5.2017 DELIVERED THE FOLLOWING:** **ab** **P.UBAID, J. --------------------------------------Crl.A No.43 of 2012** **---------------------------------------** Dated this the 30[th] day of May, 2017 ## **J U D G M E N T** The appellant herein is the sole accused in C.C No.3/2004 of the Special Court (Vigilance), Kozhikode. He faced prosecution before the court below on the allegation that while working as Village Man at the Morazha Village Office in Kannur District, he demanded an amount of 250/-₹ from one Rajeevan for himself and also for the Village Officer as illegal gratification for issuing possession certificate and site plan, and that on 16.1.2003 at about 2.30 pm., he accepted the said amount of 250/- from the said Rajeevan, at₹ the Village Office, in the presence of the Village Officer. The accused was trapped by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kannur on 16.1.2003 while accepting illegal gratification, on the complaint made by the complainant Rajeevan. The Village Man and also the Village Officer were arrested by the VACB at the Village Office, and on the basis of the result of the phenolphthalein 2 Crl.A No.43 of 2012 test and also the seizure of tainted money from the possession of the Village Man, the VACB registered a crime against both the officers. After investigation the VACB submitted final report only against the Village Man. The further proceedings and prosecution against the Village Officer were dropped by the VACB as ordered by the Government in the absence of clear and convincing evidence. 2. The accused appeared before the learned trial judge and pleaded not guilty to the charge framed against him under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short 'the P.C Act'). The prosecution examined eight witnesses, including the complainant Rajeevan, and also proved Exts.P1 to P22 documents. MO1 to MO5 properties including the tainted money were also identified during trial. Exts.C1 to C2(c) documents were also proved during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances, and projected a defence that the money was in fact meant for and accepted for the Village Officer, that he happened to receive it only as instructed by the Village Officer, that he had not made any such demand, and that he had not accepted any illegal gratification 3 Crl.A No.43 of 2012 or bribe from the complainant, as the prosecution would allege. The accused also examined a witness as DW1 in defence. 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 13(1)(d) of the₹ P.C Act by judgment dated 27.12.2011. Aggrieved by the said 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 prosecution sanction in this case was mechanically granted by the District Collector without applying his mind to the facts of the case and without properly understanding the circumstances in which the Village Officer, who was arrested as the main accused, happened to be deleted from the array of the accused, that the District Collector granted sanction against the Village Man without any proper material against him, without examining and understanding the materials submitted by the VACB, and that there is absolutely no evidence to prove that illegal gratification was demanded by the accused. The learned counsel also submitted that the available evidence would show Crl.A No.43 of 2012 4 that money was in fact demanded by the Village Officer who was also arrested by the VACB along with the Village Man, but without any sufficient reason or legal justification the VACB deleted him from the array of the accused and brought a baseless final report against the Village Man. On the other hand the learned Public Prosecutor submitted that the tainted money was seized from the possession of the Village Man, and that the complainant is definite that illegal gratification was first demanded by the Village Man. He also submitted that the District Collector has given convincing evidence that the prosecution sanction was granted by him on an application of mind properly to the facts of the case. 4. Before going to the factual aspects as regards demand and acceptance let me see whether the prosecution sanction in this case was properly and legally granted by the competent authority. Ext.P22 is the prosecution sanction granted under Section 19 of the P.C Act, and PW8 is the District Collector who granted the sanction. Ext.P2 is the file containing the matters relating to sanction. Ext.C2(a) is a letter written by the Director of the VACB to the District Collector, requesting him to grant sanction. This letter shows 5 Crl.A No.43 of 2012 that a draft prosecution sanction, as a model, was also submitted by the Director of Vigilance to the District Collector. In evidence, PW8 fairly admitted the contents of the Ext.C2(a) letter, and admitted that he had received such a draft prosecution sanction. He also admitted that the required details like the name of the District Collect etc. were filled up, and a fair prosecution sanction was prepared and sent to the VACB. Of course, the District Collector has stated that he had applied his mind to the facts of the case for granting sanction. But this evidence cannot be believed by the court, in view of the other admissions that he had received a draft prosecution sanction, and the fair was prepared by him in terms of the draft received by him from the VACB. Much enquiry or probe is not required to find that the Ext.P22 prosecution sanction was granted by the District Collector mechanically, without applying his mind independently to the facts of the case, or just accepting the model form submitted to him by the Director of the VACB. In **T.K.Ramesh Kumar v. State through Police Inspector, Bangalore [(2016) 3 SCC (Cri) 316]** , a case where the Hon'ble Supreme Court found that the prosecution sanction was granted by the competent authority, quite Crl.A No.43 of 2012 6 mechanically or without exercising his statutory power properly by applying his mind to the facts of the case independently, the Hon'ble Supreme Court acquitted the accused on the said ground. Of course, on factual aspects also the Hon'ble Supreme Court found in favour of the accused in the said case. In this case I find that the Ext.P22 sanction was not granted by PW8 properly and legally as prescribed under the law, and that on this ground itself the appellant is entitled for acquittal. 5. Now let me come to the factual aspects as regards the essentials. The Hon'ble Supreme Court has consistently held in so many decisions that for a conviction under Section 7 and 13(1)(d) of the P.C Act, on the allegation of acceptance of illegal gratification, the prosecution must convincingly prove that illegal gratification was demanded by the public servant, and that in terms of the said demand he accepted it. In **C.Sukumaran v. State of Kerala (2015 Crl.L.J 1715)** the Hon'ble Supreme Court has held that demand of illegal gratification by the accused is the sine qua non for constituting the offence under Section 7 and under Section 13(1)(d) of the P.C Act. In so many decisions like **B.Jayaraj v. State of** Crl.A No.43 of 2012 7 **Andhra Pradesh (2014 Crl.L.J.2433), T.K Ramesh Kumar** 's case (cited supra) etc. the Hon'ble Supreme Court has held that on the basis of the recovery of tainted money from the possession of the accused alone a public servant cannot be convicted under Section 7 or under Section 13(1)(d) of the P.C Act. There must be evidence to prove the demand and also acceptance of illegal gratification by the public servant. Recovery of tainted money may in some cases prove acceptance of illegal gratification, but for a conviction under Section 7 and 13(1)(d) r/w 13(2) of the P.C Act there must be convincing evidence to prove the demand also. Let me see whether the prosecution in this case has proved demand as required under the law. 6. PW1 is the defacto complainant who made the Ext.P1 complaint before the VACB and PW2 is the trap witness. Of course, PW2 has no case that he had witnessed the complainant making payment of the tainted money to the accused at the Village Office. Practically the defence has no dispute regarding the recovery of tainted money (₹250/-) from the possession of the accused. Admittedly, such a recovery was made at about 2.30 pm., at the Village Office, Morazha on 8 Crl.A No.43 of 2012 16.1.2003. The defence contention is also that he happened to receive the tainted money only as directed by the Village Officer, and that the said money was in fact meant for the Village Officer. 7. In the FI statement given by the PW1 his case is that money was demanded by the Village Man on 10.1.2003 but on 15.1.2003 bribe was demanded by the Village Officer. He made the complaint on 16.1.2003 at about 9.30 am. The complaint shows that what prompted him to make such a complaint is the demand made by the Village Officer on 15.1.2003. In evidence also PW1 is consistent that on 10.1.2003 the Village Man (accused) demanded some fee and told him that without payment of 'fee' the possession certificate and site plan could not be issued. On 10.1.2003 the Village Officer and the Village Man had come to the spot for site inspection, and on the said date at about 6 pm., at the Village Office, the Village Man told him that some fee is required for the plan and the possession certificate. He did not exactly understand what was meant by 'fee' by the Village Man. He was required to come to the Village Office on the next Monday. As he could not go to the Village Office for four days he met the Crl.A No.43 of 2012 9 Village Officer at the Village Office on 15.1.2003 and made a request for the plan and the possession certificate. On that day, the Village Officer demanded 250/-, or that he repeated₹ the demand which the Village Man had earlier made. The case of the complainant is that the Village Man demanded 100/- for₹ himself and 150/- for the Village Officer. That was the₹ demand made by the Village Officer also at the Village Office on 15.1.2003. In examination-in-chief itself PW1, the complainant stated as follows: “Villageman file ®¿áJí Village Officer ùáæ¿ ÎáùßÏßçÜAí çÉÞÏß. Village Officer ùáæ¿åside ÜáU µçØøÏßW Villageman §øáKá.å¾ÞX ¥Õßæ¿ æºKá.åVillageman Éâ çºÞÆߺî ØÎÏ¢ Éâ ®¿áJí Village Officeræù µÞÃߺîá.åVillageman èµÕÖ¢ Éâ æµÞ¿áAÞX ÉùEá. **”** (The Village Man took the file and went to the Village Officer's room and sat on a chair beside the Village Officer. I also went to the Village Officer's room. When the Village Man asked whether I had brought money I took it and showed to the Village Officer, and the Village Officer directed me to make payment to the Village Man) 8. The above statements made by the complainant in examination-in-chief itself will show that practically demand was made by the Village Officer, and quite tactfully the Village Officer avoided acceptance of money and directed payment to the Village Man. When cross examined by the defence PW1 10 Crl.A No.43 of 2012 ## stated as follows: **“** ÉøÞÄßAí ÎáOí ¾ÞX Village OfficeW æºK ØÎÏ¢ Éâ æµÞIá ÕKßGáçIÞ ®Kí Village Officer çºÞÆߺîá.åÉâ ÄKÞçÜ ØVGßËßAxí ÄøÞX Éxá ®KᢠVillage Officer ÉùEá.å¥ÄßÈÞÜÞÃá ¾ÞX Vigilance W ÉøÞÄß æµÞ¿áJÄí. **”** (When I visited the Village Office before making the complaint the Village Officer had asked him whether I had brought the required money and also said that the certificate could be issued only on payment of money. That is why I made a complaint before the vigilance) 9. The above statement will definitely show that illegal gratification was in fact demanded by the Village Officer at the Village Office on 15.1.2003 and it was this demand that prompted the complainant to make a complaint on 16.1.2003. 10. Of course it is true that the tainted money was seized by the Deputy Superintendent of Police, VACB from the possession of this accused. But the accused has his own explanation as to how, or in what circumstance he happened to receive the money, or how the money came in his pocket. Here one particular aspect assumes importance. PW5 is the Deputy Superintendent of Police, who registered the crime and laid the trap. He, and also PW2, the trap witness, have stated in evidence that when the fingers of the Village Officer were dipped in phenolphthalein solution, it turned pink in colour. Of Crl.A No.43 of 2012 11 course, the test turned positive in the case of the accused because it was seized from his pocket. But the VACB has no explanation as to how the phenolphthalein test in the case of the Village Officer turned positive. The Village Officer was also arrested on the spot by the Deputy Superintendent of Police in view of the result of the phenolphthalein test, and the crime was initially registered against both. But subsequently, things had a turn and the Village Officer was deleted from the array of accused. The explanation given by the investigating officer examined as PW6 is that in the absence of any definite material against the Village Officer, the VACB decided to delete from the array of accused, and such a direction was given by the Government also. Of course, it is true that tainted money was not seized from the possession of the Village Officer. But it requires explanation how the phenolphthalein test in his case turned positive, or why the solution turned pink in colour when his fingers were dipped in it, if he had not accepted the tainted money. Here the whole prosecution case as against the Village Man is doubtful. I have already extracted the statements given by the complainant in examination-in-chief and also in cross examination, indicating unerringly that illegal gratification was Crl.A No.43 of 2012 12 in fact demanded by the Village Officer. There is reason to believe that the Village Man only repeated the demand on behalf of the Village Officer, and the money brought by the complainant on 16.1.2003 was in fact meant for the Village Officer. I find that the Village Officer who had made such demand for bribe and for whom the money was meant, tactfully avoided acceptance directly and asked the Village Man to receive it. 11. Just because the tainted money was seized from the possession of the accused, he cannot be found guilty or convicted, when evidence probablises otherwise that demand was in fact practically made by the Village Office. The complainant is definite in his evidence that demand for illegal gratification was made by the Village Officer on 15.1.2003 and it was this demand made the Village Officer that prompted him to make complaint on the next day. This means that the money brought by him on 16.1.2003 was in fact meant for the Village Officer, who made the demand on the previous day. When evidence shows that demand was in fact made by the Village Officer, who probably meant that a fraction would be paid to the Village Man also, the Village Man cannot be found guilty Crl.A No.43 of 2012 13 just because the tainted money happened to be seized from his possession. I find that the prosecution case as against the Village Man is doubtful. There is reason to believe that demand was in fact made by the Village Officer and the trap was also aimed at the Village Officer. But somehow the Village Officer escaped, when he tactfully evaded acceptance of money directly. Had the Village Officer not accepted or touched the tainted money the phenolphthalein test in his case would not have turned positive. I find that the benefit of this genuine doubt must go to the Village Man. So I find that the appellant is entitled for acquittal on factual aspects also. In the result, this appeal is allowed. The appellant is not found guilty of the offence under Sections 7 and 13(1)(d) and under Section 13(2) of the P.C Act, 1988 and accordingly he is acquitted of the said offence in appeal under Section 386(b)(i) of Cr.P.C. The conviction and sentence against him in C.C No.3/2004 of the court below will stand set aside. The appellant is released from prosecution, and the bail bond, if any, executed by him will stand discharged. ab Sd/- **P.UBAID, JUDGE** //True Copy//