Mohammed Ahraf M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938** **CRL.A.No. 476 of 2015 -----------------------** **JUDGMENT DATED 13-05-2015 IN CC 2/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR CRIME NO. 4/2007 OF VACB, ERNAKULAM** **.....** ## **APPELLANT/ACCUSED:** **------------------** **MOHAMMED AHRAF M., FORMER SECRETARY (SPECIAL GRADE), MARADU GRAMA PANCHAUYAT, S/O MOHAMMED ISMAIL, PULIMOOTTIL HOUSE, BEACH WARD, ALAPPUZHA.** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2015 THE COURT ON 13-06-2016, DELIVERED THE FOLLOWING:** **msv/** ## **P.UBAID, J.** **~~~~~~~~~~ Crl.A No.476 of 2015** **~~~~~~~~~~~ Dated this the 13[th] June, 2016** ## **J U D G M E N T** The appellant herein was the Secretary (Special Grade) of the Maradu Grama Panchayat (Ernakulam District) in March, 2007. On the allegation that he accepted an amount of 12,000/- as illegal gratification from one Anil₹ Kumar for granting panchayat permit for the construction of a building having an area of 418 sq.mtr, on 20.3.2007, the appellant faced prosecution before the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C No.2/2008. The said Anil Kumar made application for permit on behalf of one Suresh Menon. When Anil Kumar and the Building Supervisor Biju approached the Secretary on 15.3.2007 at about 2.30 p.m at his office, he demanded a total amount of 22,100/- inclusive of the building permit₹ fee. When Anil Kumar and Biju again approached the Secretary on 19.3.2007, he reiterated the demand for illegal gratification, but reduced the claim to 12,000/-, and₹ asked them to come with the amount at his office on the **Crl.A No.476 of 2015** **2** next day. The demand made by the Secretary was conveyed to Suresh Menon. Suresh Menon was not inclined to make payment of any bribe to the Secretary for obtaining building permit. As advised by him, Anil Kumar approached the Vigilance and Anti-Corruption Bureau, Ernakulam Unit in the afternoon on 19.3.2007 itself and made complaint. On the said complaint, the Deputy Superintendent of Police, VACB, Ernakulam registered a crime and arranged a trap on 20.3.2007. After completing the necessary pre-trap formalities, the complainant and a trap witness arranged by the VACB were instructed to approach the accused at his office. Accordingly, Anil Kumar and the trap witness reached at the panchayat office at about 11.30 a.m and met the accused. When the Secretary asked whether Anil Kumar had brought the required amount, Anil Kumar took the phenolphthalein tainted currency and tendered it to the Secretary. The Secretary did not accept the amount in his hands, but asked Anil Kumar to place it on the table. Just then the complainant came out, and passed the prearranged signal. On getting signal, the Dy.S.P and the team **Crl.A No.476 of 2015** **3** reached there, seized the phenolphthalein tainted currency, and arrested the accused on the spot. After thorough investigation, the VACB submitted final report before the learned Special Judge. This is the prosecution case. 2. The accused entered appearance 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. (for short “the P.C Act”). The prosecution examined 13 witnesses including the complainant and other material witnesses, and also proved Exts.P1 to P16 documents including the complaint made by Anil Kumar, the application in the name of Suresh Menon for building permit, and the prosecution sanction granted by the Director of Panchayats. The material objects including the phenolphthalein tainted currency were identified as MO1 to MO21. 3. When examined under Section 313 Cr.P.C, the accused projected a defence that this is a false case foisted at the instance of one Xavier Williams. The defence case is that an industrial concern of the said Xavier Williams, by **Crl.A No.476 of 2015** **4** name “Southern Chemicals and Solvents” was once closed down in view of public protest alleging pollution, as ordered by the Secretary of the Panchayat, but it later resumed functioning in some special circumstances. By the time the accused took charge in the Panchayat as Secretary, and thereafter also protest came against the said concern. In view of strong public protest, the accused also took necessary steps under the law, and he also ordered the said concern to be closed down. Accordingly, the said concern was closed down and sealed. At that time, Xavier Williams had threatened with dire consequences including prosecution under the P.C Act, and to wreak vengeance, Xavier Williams used the complainant Anil Kumar who was his Driver and aide to make a false complaint. To prove or probabilise the defence case, the accused examined seven witnesses on his side, and also marked Exts.D1 to D4 series documents. 4. On an appreciation of the entire evidence adduced by the prosecution and the defence, the trial court found that the defence projected by the accused is quite **Crl.A No.476 of 2015** **5** improbable and unacceptable. The learned trial Judge accepted the clear and convincing evidence given by the prosecution witnesses including the Government Servant arranged by the VACB as trap witness, and found the Panchayat Secretary guilty. 5. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of 10,000/- under Section 7 of the P.C Act, and to undergo another term of rigorous imprisonment for three years, and to pay a fine of 10,000/- under Section 13 (2) read with 13₹ (1) (d) of the P.C Act, by judgment dated 13.5.2015. Aggrieved by the said judgment of conviction, the accused has come up in appeal. 6. When this appeal came up for hearing, the learned counsel for the appellant vehementally argued that the entire prosecution story is really artificial, and the whole evidence is doubtful. He submitted that this is a false prosecution brought at the instance of one Xavier Williams, who had previous grudge against the appellant at whose instance, the industrial concern of Xavier Williams was **Crl.A No.476 of 2015** **6** closed down. The learned counsel also submitted that the allegation that the accused demanded 22,100/- or ₹ ₹ 12,000/- as building permit fee is quite unbelievable because building permit fee could be levied only at the rate of 3/-₹ sq.mtr. In fact the prosecution case is not that the accused demanded 22,100/- on 15.3.2007 and reduced the claim to₹ ₹ 12,000/- on 19.3.2007 by way of building permit fee. The prosecution case is that inclusive of the building permit fee at the prescribed rate, the Panchayat Secretary demanded such amount,and he accepted the amount of 12,000/- on₹ 20.3.2007 inclusive of the total building permit fee, that will come to only 1253/-. What is proved by the defence₹ document marked as Ext.D4 (a) is also that receipt for ₹ 1253/- was given from the panchayat office. 7. The learned Public Prosecutor in charge of the case submitted that the prosecution against the appellant was initiated on a genuine complaint containing true allegations, that the evidence given by the complainant and other material witnesses is quite blemishless, and that there is absolutely nothing in the evidence of any of the defence **Crl.A No.476 of 2015** **7** witnesses to prove that the complainant Anil Kumar is in any manner associated with Xavier Williams, or that he is his agent, or that Anil Kumar made the Ext.P2 complaint at the instance of the said Xavier Williams. The learned Public Prosecutor also submitted that the entire prosecution case stands properly and legally proved beyond any reasonable doubt, and so there is no scope for interference in appeal. 8. Of the 13 witnesses examined by the prosecution, PW1 is the complainant, from whom the accused accepted illegal gratification, PW8 is the Works Supervisor who had accompanied the complainant to the panchayat office on 15.3.2007, and on 19.3.2007, PW2 is the trap witness arranged by the vigilance to witness acceptance of illegal gratification, PW6 is the Director of Panchayats, examined to prove the Ext.P10 prosecution sanction granted under Section 19 of the P.C Act, PW4 and PW5 are the Panchayat staff who produced some documents before the vigilance during investigation, and PW13 is the Dy.S.P who laid the trap, detected the offence and investigated the case, Ext.P2 is the complaint given by PW1, Ext.P3 is the entrustment **Crl.A No.476 of 2015** **8** mahazar as per which the bribe amount produced by the complainant was seized by the police, Ext.P6 is the detection mahazar which contains all the details of the trap procedure, Ext.P10 is the sanction granted under Section 19 of the P.C Act, and Ext.P1 is the application for building permit in the name of Suresh Menon. The defence witnesses examined by the accused include the former President and former Deputy Director of Panchayats and also the former panchayat officials. 9. One defence projected by the accused is that, this prosecution was initiated falsely at the instance of one Xavier Williams. It is alleged that the complainant was the driver of the said Williams, and the complainant was used by Xavier Williams to make a false complaint. Such a suggestion was put to the complainant and others, but nothing effective could be brought out to probabilise that the complainant has got any connection with the said Xavier Williams, or that he was his driver. The witnesses examined by the defence spoke about one Anil Kumar as driver, but nobody could specifically identify the complainant herein as **Crl.A No.476 of 2015** **9** the driver of Xavier Williams. Their evidence is only that one industrial concern belonging to Xavier Williams was closed down at the instance of the appellant herein as the Secretary of the Panchayat. But there is nothing to show that the present complaint was made at the instance of the said Xavier Williams. Just because an industrial concern belonging to Xavier Williams was closed down by the Panchayat, and that the appellant herein was the Secretary at that time, the court cannot come to any conclusion regarding such hostility in the absence of any satisfactory evidence or material probabilising such a hostility. Thus, I find that the evidence of DW1 to DW4 does not contain anything material to probabilise such a defence case, or to prove that the complainant herein had been the driver of Xavier Williams, or that the complainant made the Ext.P2 complaint at the instance of, or as instructed by Xavier Williams. 10. The other defence projected by the accused is that, on 9.3.2007 he was away from the panchayat office. DW5 to DW7 were examined and some documents were **Crl.A No.476 of 2015** **10** also proved to show that the accused was away from the office on 9.3.2007, till noon. Such a defence was projected in view of the case of the complainant that the Ext.P1 application in the name of Suresh Menon was submitted in the Panchayat on 9.3.2007. There is no definite evidence to show that the Ext.P1 application was in fact directly received by the Panchayat Secretary. What is proved by evidence is only that it was submitted in the Panchayat office on 9.3.2007. There is no dispute regarding the fact that Ext.P1 application is an application received at the panchayat office. 9.3.2007 is not the date on which demand was made by the panchayat secretary. The complainant is definite in his evidence and also in the Ext.P2 complaint that demand was made by the Panchayat Secretary on 15.3.2007, and it was repeated on 19.3.2007. The illegal gratification was accepted on 20.3.2007. These are the three very important dates. So it is of little consequence that he was away from the office on 9.3.2007. Thus, I find that the evidence given by DW1 to DW7 or the documents proved through them will not in any manner help the **Crl.A No.476 of 2015** **11** accused, and their evidence will not prove that the Ext.P2 complaint was made by PW1 at the instigation of Xavier Williams. Now let me go to the evidence adduced by the prosecution. 11. Ext.P2 is the complaint made by PW1, and Ext.P1 is the application for building permit submitted by Suresh Menon. The said application was submitted in the panchayat office by the complainant Anil Kumar on behalf of Suresh Menon, as his agent. The case of the complainant in Ext.P2 complaint is that when he and the Works Supervisor Biju approached the Panchayat Secretary on 15.3.2007 with request to issue permit, the Panchayat Secretary demanded an amount of 22,100/- inclusive of the amount of building₹ permit fee. It is alleged that the Secretary demanded permit fee at the rate of 3/- per sq.ft, and an extra amount₹ of 2/- per sq.ft as contribution to the Presidents Relief₹ Fund. The total amount of licence fee payable in this case is only 1253/-. ₹ Ext.D4 (a) document proved on the side of the accused will prove that only 1253/- was received in the₹ office by way of building permit fee. This means that huge **Crl.A No.476 of 2015** **12** amount in excess of the prescribed fee was demanded by the accused, and thus he demanded a total amount of ₹ 22,100/- on 15.3.2007. The complaint further alleges that when the complainant and Biju approached the accused again on 19.3.2007, he repeated the demand, and on bargain he reduced the amount to 12,000/-. Accordingly,₹ the complainant was directed to come on the next day with the required amount. When the complainant conveyed the demand to Suresh Menon, he instructed the complainant to make a complaint. It was accordingly the Ext.P2 complaint was made on 19.3.2007 itself before the VACB. 12. PW1, the complainant has given clear and satisfactory evidence fully in support of the allegations in the Ext.P2 complaint, and he has also given evidence regarding the pre-trap and the post-trap procedures including acceptance of illegal gratification by the accused. He is fully supported by PW8, the Works Supervisor, who had accompanied him to the Panchayat office on 15.3.2007 and on 19.3.2207, and also by PW2, the trap witness arranged by the VACB. As regards the demand made by the accused **Crl.A No.476 of 2015** **13** on 15.3.2007 and on 19.3.2007, the defence could not bring out anything in the cross-examination of PW1 or PW8., Both these witnesses are definite and consistent in their evidence that the accused demanded a huge amount of 22,100/- on₹ 15.3.2007 as illegal gratification inclusive of the amount of building tax permit fee, and later, on 19.3.2007, he reduced the claim to 12,000/- and insisted that, that the amount₹ must be paid on the next day itself. This Court finds no reason to disbelieve these two witnesses on this aspect, or to suspect their evidence. The demand made by the accused is well proved by the evidence of PW1 and PW8. 13. PW1 stated in evidence that, the required amount of 12,000/- was given to him by the father of₹ Suresh Menon, he produced the said amount on 20.3.2007, the same was received by the Dy.S.P as per a mahazar, and after demonstrating phenolphthalein test, he was instructed by the Deputy Superintendent of Police to approach the accused, and make payment of the amount. He was also accompanied by PW2, the Government Servant, arranged by the VACB, to witness the trap. At about 10.00 a.m, the team **Crl.A No.476 of 2015** **14** consisting of the vigilance officers started from the vigilance office, and they reached at the office of the accused at about 11.15 a.m. He and PW2 entered the room and PW2 was introduced as the brother of Suresh Menon. When they entered the room, the accused asked PW1 whether he had brought the required amount. When PW1 tendered the amount, he was asked by the accused to place the amount on his table. Accordingly, the tainted money was placed on the table by PW1. When two other persons entered the room for some other purpose, the Secretary immediately took a black bag and placed it on the amount, to conceal it from others. Immediately PW1 and PW2 came out, and passed the pre-arranged signal. Within no time, the vigilance team led by the Dy.S.P reached there, recovered the tainted money, and arrested the accused. On these aspects, PW1 and PW2 are definite and consistent. 14. PW2 was the Revenue Recovery Special Tahsildar at Kochi at that time. His evidence is that, he reached at the office of the VACB as instructed from the collectorate, and that as instructed by the Dy.S.P, he accompanied the **Crl.A No.476 of 2015** **15** complainant to the office of the accused. They met him at the office at about 11.15 a.m, and he was introduced by the complainant as the brother of Suresh Menon. When they entered the room, the accused asked the complainant whether he had brought the required amount. When the complainant tendered the phenolphthalein tainted currency to the accused, he asked the complainant to place it on the table. The Panchayat Secretary did not receive the amount in his hands. When two other persons entered the room for some other purpose, the Secretary immediately took a black bag and placed it on the amount to conceal it. He and PW1 came out, and on getting the pre-arranged signal from the complainant, the Dy.S.P and others rushed to the cabin of the Secretary, seized the phenolphthalein tainted currency, which was seen on the table of the accused, concealed by a black bag, and after conducting phenolphthalein test which turned positive, the accused was arrested on the spot. 15. Nothing could be brought out by the defence in the cross-examination of PW1 or PW2 regarding the trap procedure, including acceptance of phenolphthalein tainted **Crl.A No.476 of 2015** **16** currency of 12,000/- by the accused. It is true that it was₹ not received in his hands by the accused. Both the witnesses are consistent that the accused asked the complainant to place the money on the table, and when two others came there, he concealed the money with a black bag. On phenolphthalein test, traces of phenolphthalein could be detected on the said black bag with which the accused concealed the amount. The phenolphthalein tainted currency was well identified by the witnesses during trial. Thus, acceptance of the phenolphthalein tainted currency of ₹ 12,000/- by the accused from PW1 stands well proved by the evidence of PW1 and PW2. Of course, it was not received by him in his hands, and it was not seized on body search. The amount was seen on the table of the accused, as concealed by him with a bag. As regards the seizure of the amount, the accused does not practically have any dispute because even the defence case is that the phenolphthalein tainted currency was placed on the table by the complainant as instructed by Xavier Williams, with the object of viciously trapping the Secretary. Thus, seizure of **Crl.A No.476 of 2015** **17** the tainted money found on the office table of the accused is not in dispute. The material question is whether this amount was accepted by the accused as illegal gratification. On this aspect, there is the clear evidence given by PW1 and PW2, that the tainted money seized by the police was tendered by PW1 to the accused on demand, and it was as instructed by the accused, the amount was placed on the table. This will clearly prove acceptance of the money by the accused. 16. On an appreciation of the evidence given by the material witnesses examined as PW1, PW2 and PW8, I find that the very essentials stand well proved by them. The alleged demand on 15.3.2007 and on 19.3.2007 is convincingly proved by the complainant and PW8, and acceptance of money on 20.3.2007, as part of a trap, is well proved by the complainant and PW2, the trap witness. I find no reason at all to disbelieve these witnesses or to reject their evidences. The whole trap procedure is described in the Ext.P6 mahazar proved by the witnesses. Just because the Ext.P1 application does not bear any date, or just **Crl.A No.476 of 2015** **18** because the accused was away from his office on 9.3.2007, the evidence given by the prosecution on the factual aspects cannot be doubted. Thus, I find that on factual aspects, there is clear and convincing evidence in this case, and the essentials stand well proved by PW1, PW2 and PW8. 17. PW1 and PW8 are consistent that when they first approached the accused on 15.3.2007, he demanded money at the rate of 5/- per sq.ft. Thus, he assessed the total₹ amount as 22,100/- inclusive of the amount of illegal₹ gratification. However, later the claim was reduced to ₹ 12,000/-. PW8 is further corroborated by the Ext.P12 statement given by him to the learned Magistrate under Section 164 Cr.P.C. The total amount of permit fee payable in this case is only 1253/,- for the 418 sq.mtr space of the₹ proposed building. Only that much amount was paid in fact as per the Ext.D4 (a) document. But the accused demanded ₹ 12,000/-. This definite evidence given by PW1 and PW8 regarding demand stands not in any manner discredited. Phenolphthalein test conducted on the spot is not very much helpful in this case because the tainted money was not in **Crl.A No.476 of 2015** **19** fact received in his hands by the accused. However, the MO5 bag with which the accused concealed the amount placed on his table was well identified by the witnesses during trial, and the phenolphthalein test conducted on this bag turned positive. 18. The learned counsel for the appellant cited **State of Kerala vs. Rao [2011 (2) KLT 812 SC]** , and also a decision of this Court in **Prakash Pai v. State of Kerala [2015 (3) KLT 989],** and submitted that mere recovery of tainted money is not sufficient to convict an accused when substantive evidence is not reliable, or when there is no evidence to prove the essentials. He also cited **T** . **Subramanian v. State of Tamil Nadu [AIR 2006 SC** **836** ] and submitted that mere acceptance of money as illegal gratification will not be sufficient to convict an accused under the P.C Act, when there is no evidence proving demand. Of course, it stands settled well by the Hon'ble Supreme Court in so many decisions that in the absence of evidence proving demand and acceptance, there cannot be a conviction under Section 7 or 13 (2) of the P.C **Crl.A No.476 of 2015** **20** Act, simply on the basis of the recovery of tainted money. But here the position is that the essentials stand well proved by the evidence of the material witnesses. I find that the evidence given by the material witnesses proving the essentials, is quite blemishless. As regards the defence projected by the accused, I have already come to a finding that the evidence given by the defence witnesses, or the materials brought out by the defence in the crossexamination of the prosecution witnesses, will not probabilise that defence case. 19. PW5 and PW7 are the persons, who allegedly entered the chamber of the accused just after PW1 and PW2 tendered the bribe money. They were examined to prove that they had seen a black bag on the table of the accused. But these two witnesses did not support the prosecution. PW3 is the Junior Superintendent of the Panchayat office and PW4 is an Upper Division Clerk. Their evidence is only regarding the seizure of some documents by the Vigilance Dy.S.P. I find that the investigation was properly conducted by the Dy.S.P. On an examination of the evidence, I find **Crl.A No.476 of 2015** **21** nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by him. Thus, I find that the prosecution case stands well proved on facts, that illegal gratification was demanded by the appellant from PW1 on 15.3.2007 and on 19.3.2007 and that on 20.3.2007, an amount of 12,000/- was accepted by him as illegal₹ gratification, as a reward for issuing building permit in the name of Suresh Menon represented by the complainant herein. 20. PW6 is the Director of Panchayats who issued the Ext.P10 prosecution sanction in this case under Section 19 of the P.C Act. He has well proved the Ext.P10 sanction. His evidence is that, he granted the Ext.P10 sanction for prosecution on a consideration of all the relevant materials and documents submitted by the Investigating Officer, and that he took decision to grant sanction on an independent application of mind. Thus, the prosecution sanction stands well proved as provided under the law by the person who granted the sanction. There is nothing to show that sanction was granted by him mechanically or without considering the **Crl.A No.476 of 2015** **22** ## relevant documents and records. 21. In view of the findings above, on factual aspects and also on the prosecution sanction, I find that the prosecution has well proved the whole case beyond reasonable doubt. I find no reason for interference in the findings, or in the conviction made by the trial court. Now the question is whether the sentence requires interference in appeal. Now, after the recent Amendment to the P.C Act, the minimum sentence provided for the offence under Section 7 of the P.C Act is imprisonment for three years, and the minimum sentence under Section 13 (2) of the P.C Act is imprisonment for four years. But as on the relevant date, the minimum sentence provided under Section 7 of the P.C Act was imprisonment for six months, and the minimum sentence provided under Section 13 (2) of the P.C Act was one year. In this case, the sentence imposed by the court below is rigorous imprisonment for two years under Section 7 of the P.C Act, and rigorous imprisonment for three years under Section 13 (2) of the P.C Act, besides the fine sentence imposed. On a consideration of the various **Crl.A No.476 of 2015** **23** aspects, I feel it appropriate to reduce the sentence in this case. The offence was detected in 2007, and the trial court pronounced the judgment only in 2015. But the appeal is being disposed of without any delay. On a consideration of the various aspects, I find that rigorous imprisonment for one year under Section 7 of the P.C Act and rigorous imprisonment for two years under Section 13 (2) of the P.C Act will be the adequate sentence in this case. To this limited extent of reducing the sentence, this appeal can be allowed in part. In the result, this appeal is allowed in part, to the very limited extent of reducing the sentence imposed by the trial court. The conviction made by the court below against the appellant in C.C 2/2008 under Sections 7 and 13 (2) of the P.C Act will stand confirmed. However, the sentence imposed by the trial court under Section 7 of the P.C Act will stand reduced to rigorous imprisonment for one year and the sentence imposed under Section 13 (2) read with Section 13 (1) (d) of the P.C Act will stand reduced to rigorous imprisonment for two years besides the fine sentence **Crl.A No.476 of 2015** **24** imposed by the trial court. The benefit of concurrent sentence given by the trial court with set off is maintained. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge