M/S K. Kesavan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939** **CRL.A.No. 1890 of 2009** ## **CC 3/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** **------------------** ## **APPELLANT(S)/ACCUSED** **M/S K. KESAVAN, S/o.KRISHNAN, KOCHUPURAYIL PUTHENVEEDU,, NEDUVARAM KODE P.O.,, CHENGANNUR, ALAPPUZHA DIST.** **BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.** **BY SPECIAL PUBLIC PROSECUTOR SRI.A.RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **STK** ## **B. SUDHEENDRA KUMAR, J.** **-------------------------------Crl. Appeal No.1890 of 2009** **----------------------------------** Dated this the 13[th] day of March, 2018 ## **JUDGMENT** The appellant is the accused in C.C.3/2008 on the files of the court below. 2. The prosecution allegation is that the appellant demanded Rs.1000/- as illegal gratification from PW1 on 18.04.2001 as a motive for giving electrical connection to the house owned by the father of PW1 and thereafter the appellant repeated the demand on 20.04.2001 at about 9.15 a.m. at the office of the appellant. The appellant also repeated the demand and accepted the amount of Rs.1000/- on 20.04.2007 at about 9.15 a.m. 3. On the basis of Ext.P11 statement given by PW1, Ext.P12 FIR was registered. A successful trap was arranged by PW8. The appellant was arrested from the spot and MO1 currency note was seized. MO1 currency note answered affirmative for phenolphthalein test. The investigation was conducted by PW7. ## **Crl.Appeal No.1890 of 2009** ## **-: 2 :-** After verifying the investigation conducted by PW7, PW6 filed the final report before the court. 4. In the trial, PW1 to PW8 were examined and Exts.P1 to P30 were marked for the prosecution, besides identifying MO1 to MO4. DW1 to DW4 were examined and Ext.X1 and X2 were marked for the appellant. 5. After evaluating the evidence, the court below found the appellant guilty under Sections 7 and 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act and convicted him there-under. The appellant was sentenced to simple imprisonment for two years and a fine of Rs.10,000/- and in default to simple imprisonment for six months under Section 7 of the Prevention of Corruption Act and simple imprisonment for three years and a fine of Rs.10,000/- with a default clause for simple imprisonment for six months under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act. 6. Heard. **Crl.Appeal No.1890 of 2009** ## **-: 3 :-** 7. PW1 is the defacto-complainant in this case. PW1 is a practicing lawyer. PW1 stated that the accused demanded an amount of Rs.1000/- on 18.04.2001 for giving electrical connection to the house owned by the father of PW1. Since he did not want to give illegal gratification, he approached PW8 on 19.04.2001 and gave Ext.P11 statement. After demonstration, MO1 note was entrusted with PW1 by PW8, who was the then Deputy Superintendent of Police, VACB, Alappuzha. Thereafter, PW1 went to his house. On the next day i.e., on 20.04.2001 at about 8.45 a.m., PW1 came near to the office of the appellant as directed by PW8. PW8 and party reached there by around 8.45 a.m. and PW8 instructed PW1 to give MO1 to the appellant in the event of the appellant demanding the same. Thereafter, PW1 proceeded to the office of the appellant. PW2 waited outside the office of the appellant for the purpose of witnessing the handing over of MO1 by PW1 to the ## **Crl.Appeal No.1890 of 2009** ## **-: 4 :-** appellant. PW1 stated that the appellant asked him as to whether he had brought the money or not. When PW1 answered in affirmative, PW1 was instructed to put the money in to the drawer of the table of the appellant. PW1 obeyed it. PW8 and party rushed to the room of the appellant immediately after getting the signal. PW8 asked PW1 as to whether he had given the money to the appellant. Then PW1 answered that he had given the money to the appellant. 8. There is only the evidence of PW1 to prove the demand made by the appellant. With regard to the dropping of money into the drawer of the table of the appellant, PW2 stated that the appellant had opened the drawer and given a gesture. Thereafter, PW1 put something inside the drawer. However, PW1 did not say that the appellant opened the drawer of the table. His evidence is that the appellant asked PW1 to put the note into the drawer. **Crl.Appeal No.1890 of 2009** ## **-: 5 :-** 9. PW1 stated that his body was not searched by PW8 on 20.04.2001. This would show that PW8 did not ensure that PW1 possessed MO1 note before going to the office of the appellant. PW1 also did not witness the recovery of MO1 note from the drawer of the table of the appellant. PW2 did not see what exactly was dropped into the drawer by PW1. His evidence is that he saw PW1 putting something inside the drawer. 10. The first reaction of the appellant when the appellant was intercepted by PW8 was that he neither demanded nor accepted any illegal gratification from PW1. His fingers answered the test of phenolphthalein negative. This would show that he did not touch MO1 note. 11. The appellant had a contention that PW1 had submitted an application for obtaining electric connection to the house of his father on priority basis. However, the said application was not complete in all respect and in the said circumstances, the appellant instructed PW1 to bring **Crl.Appeal No.1890 of 2009** **-: 6 :-** all the documents, as PW1 wanted the electric connection on priority basis, on the reason that his father was suffering from cancer. The brother of PW1 was in military service. This also was a reason for PW1 to apply for the electric connection on priority basis. However, PW1 did not produce the relevant documents to support the claim for priority. Therefore, the appellant instructed PW1 to bring all the documents to show his priority for getting the electric connection. In the meantime, PW1 committed theft of electricity from the adjacent owner of the property by looping, which was detected by the overseer and verified by the appellant. Thereafter, PW1 was fined. PW1 was initially granted electric connection for construction of his house, even though PW1 applied for domestic connection, as the appellant found that the construction of the house of PW1 was not complete. The above reasons are stated to be the motive for PW1 to falsely trap the appellant in the above case. **Crl.Appeal No.1890 of 2009** ## **-: 7 :-** 12. PW1 admitted about the sanctioning of the electric connection for the construction purpose. He also admitted that when the wiring was complete, he submitted another application for domestic connection, which was under consideration. According to PW1, appellant demanded money for the purpose of granting domestic electric connection to the above said house. PW1 admitted that he submitted Ext.P1 application for electric connection before the Assistant Engineer. 13. It is borne out from the evidence that the appellant had no authority to grant electric connection, even though the appellant had the authority to recommend for electric connection. A suggestion was made to PW1 during the cross-examination of PW1 that while PW1 was talking to the appellant on 20.04.2001, the appellant was called by the Assistant Engineer and hence the appellant went to the room of the Assistant Engineer. PW1 answered that he was not remembering about it. To ## **Crl.Appeal No.1890 of 2009** ## **-: 8 :-** another question that the appellant went to the room of the Assistant Engineer and came out from the said room after discussion for about 10-15 minutes and that itself after hearing the telephone bell, PW1 pleaded ignorance. It is not discernible as to why PW1 was not able to recollect as to whether the appellant had gone to the room of the Assistant Engineer or not while talking to PW1 on that day. This would probabilize the contention of the appellant that PW1 might have put MO1 into the drawer of the table of the appellant in the absence of the appellant in his room. PW1 was not a layman. He was a practicing lawyer. Therefore, the above answers given by PW1 would definitely give rise to cloud of suspicion in the evidence of PW1. PW1 stated that after giving money to PW1, the cover in which the note was kept was given to the Deputy Superintendent of Police (PW8). However, PW8 did not support the said part of evidence of PW1. It is also not a normal human conduct that after trapping a person in a ## **Crl.Appeal No.1890 of 2009** ## **-: 9 :-** case like this, the person who had trapped would leave the place even without witnessing the recovery of the tainted notes. 14. The above aspect becomes more significant, particularly when PW1 is a practicing lawyer. Apart from the evidence of PW1, there is absolutely no evidence to prove the demand made by the appellant. It is true that PW2 stated about the recovery of MO1 from the drawer of the table of the appellant. However, PW2 did not state that PW2 had witnessed the dropping of MO1 into the drawer of the appellant by PW1. PW1 stated that PW1 was not searched by PW8 on 20.04.2001 before proceeding to the office of the appellant. Therefore, there cannot be any guarantee that PW1 possessed MO1 at the time when he went to the office of the appellant on 20.04.2001. If that be so, there cannot be any assurance that MO1 was dropped into the drawer of the table of the appellant by PW1 on 20.04.2001 at the relevant time. ## **Crl.Appeal No.1890 of 2009** ## **-: 10 :-** Even PW2 did not see the appellant dropping the note into the drawer of the table though he had seen PW1 putting something into the drawer of the table. The further evidence of PW2 that the appellant opened the drawer and showed some gesture and thereafter, PW1 dropped something into the drawer, is also not in support of the evidence of PW1, who did not state that the appellant opened the drawer. Thus, the evidence of PW1 and PW2 in this regard is not free from suspicion. It is true that the evidence of PW2 and PW8 would prove the recovery of tainted MO1 note from the drawer of the table of the appellant. 15. The appellant, when asked by PW8 with regard to the incident, immediately stated that he neither demanded nor accepted illegal gratification from PW1. PW8 stated that PW2 was posted to view from the back side of the appellant. However, PW2 stated that he was viewing the incident through the south-west window in **Crl.Appeal No.1890 of 2009** ## **-: 11 :-** the said room. However, Ext.P24 does not mention anything about the said window. 16. When the evidence of PW1 is not free from suspicion, there has to be corroboration of testimony of PW1 regarding the demand and acceptance of bribe. However, in this case, there is absolutely no other evidence to support the demand and acceptance of bribe made by the appellant. 17. The three-judge Bench of the Apex Court in Jayaraj P. v. State of Andra Pradesh [2014(13) SCC 55 : 2014 KHC 4199] held that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as 13(1)(d) of the Prevention of Corruption Act. The Apex Court in Sathyanarayana Moorthy v. District Inspector of Police and Another [AIR 2015 SC 3549 : 2015 KHC 4615] relied on the decision in Jayaraj (supra) and held that the proof of demand is an indispensable ## **Crl.Appeal No.1890 of 2009** ## **-: 12 :-** essentiality for an offence under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act. The Apex Court further held in Sathyanarayana Moorthy (supra) that proof of demand of illegal gratification is the gravamen of the offence under Section 7 and 13 (1)(d) of the P.C. Act and in the absence thereof, unmistakably the charge therefor would fail. 18. In this case, PW1 deposed that he was asked to place the currency notes in the drawer of the appellant and the appellant did not touch the same. There is no corroborative evidence to support the above evidence of PW1. When tainted money is recovered from the possession of the accused, the burden on the prosecution will be lesser. However, when the evidence would show that the accused did not touch the money, the burden on the prosecution is higher. In this case, the evidence of PW1 would show that he did not deny the defence suggestion that the appellant had left the room for about ## **Crl.Appeal No.1890 of 2009** ## **-: 13 :-** 10-15 minutes for discussion with the Assistant Engineer. This is very relevant because PW1 was not a layman. He stated that he could not remember as to whether PW1 had left the room or not during his conversation with the appellant. The said part of the evidence of PW1 would also give room for doubt with regard to the evidence of PW1. 19. Having gone through the evidence of PW1, I am of the view that the evidence of PW1 alone is not at all sufficient to prove the demand and acceptance made by the appellant. Since PW1 was not checked by PW8 before proceeding to the office of the apellant and since PW1 did not witness the recovery of MO1 note from the drawer of the table of the appellant, it cannot be said that there is convincing evidence before the court that PW1 placed MO1 in the drawer of the table of the appellant as stated by PW1. Having gone through the evidence of PW1, I am satisfied that the evidence of PW1 is not at all sufficient to ## **Crl.Appeal No.1890 of 2009** ## **-: 14 :-** prove either the first demand or the subsequent demand made by the appellant. The evidence as discussed above would further show that prosecution could not establish beyond reasonable doubt that on 20.04.2001 the appellant received MO1 from PW1 as illegal gratification. In view of the above reasons, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 7 and Section 13 (1)(d) r/w Section 13 (2) of the P.C.Act and the appellant stands acquitted for the said offences. The bail bond of the appellant stands discharged. Needless to state that, if the appellant had already deposited any amount before the court below pursuant to ## **Crl.Appeal No.1890 of 2009** **-: 15 :-** the direction of this Court, the appellant is entitled to reimbursement of the said amount. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//