P. A. Hariharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **CRL.A.No.1743 OF 2005** **CC 26/2001 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR** ## **APPELLANT/ACCUSED:** **P.A.HARIHARAN FORMER SUPERINTENDENTING ENGINEER, KERALA WATER AUTHORITY, PUBLIC HEALTH CIRCLE, TRISSUR.** **BY ADVS. SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.DELVIN JACOB MATHEWS SRI.GEORGE PHILIP SRI.RAJU RADHAKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **SRI B JAYASURYA-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-012021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** Crl.A.No.1743/2005 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1743 of 2005 --------------------------------------------Dated this the 8[th] day of April, 2021 ## **J U D G M E N T** The appellant is the sole accused in the case C.C.No.26 of 2001 on the file of the Court of the Enquiry Commissioner and Special Judge, Thrissur. 2. The appellant shall be hereinafter referred to as the accused. He stands convicted and sentenced by the trial court for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short “the Act”). 3. The prosecution case can be briefly stated as follows: The accused was, at the relevant point of time, working as the Superintendent Engineer in the Public Health Circle Office of the Kerala Water Authority in Thrissur. PW2 Jose, the de facto Crl.A.No.1743/2005 3 complainant, had submitted an application in the office of the accused to obtain licence to work as a contractor. Though PW2 went to the office of the accused several times, he did not get the licence. Some other contractors told him that he would get licence only if he paid bribe to the accused. On 13.04.2000, at about 10.30 hours, PW2 met the accused at his office and requested him to issue licence to him. The accused then demanded Rs.1000/- from PW2 for granting him the licence. When PW2 told the accused that he had then no money with him, the accused asked him to come next week with the money. On 18.04.2000, at 08.45 hours, PW2 gave Ext.P2 statement to the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Thrissur regarding the demand for money made by the accused. On the basis of the above statement, the Deputy Superintendent of Police (PW11) registered Ext.P2(b) F.I.R against the accused under Section 7 of the Act. PW2 produced currency notes worth Rs.1000/- before the Dy.S.P who got them treated with phenolphthalein powder and entrusted the same to PW2 with necessary instructions. The trap team, including Crl.A.No.1743/2005 4 independent witnesses, reached near the office of the accused at about 11.10 hours on 18.04.2000. Then PW2 was sent to meet the accused and to give him the bribe amount on demand. At about 11.27 hours, the Dy.S.P (PW11) got signal regarding acceptance of bribe by the accused. He entered the office room of the accused with witnesses and asked the accused whether he had received money from PW2. The accused took the tainted currency notes and placed them on the table. The phenolphthalein test conducted proved positive. The Dy.S.P seized the currency notes and arrested the accused. 4. On completion of investigation, sanction for prosecution was obtained and charge-sheet was filed against the accused for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act. The trial court framed charge against the accused for the aforesaid offences. The accused pleaded not guilty. 5. The prosecution examined PW1 to PW11 and marked Exts.P1 to P15 documents and MO1 to MO6 material objects. DW1 to DW5 were examined and Exts.D1 to D10 documents Crl.A.No.1743/2005 5 were marked on the side of the accused. 6. The trial court found the accused not guilty of the offence punishable under Section 13(1)(d) read with 13(2) of the Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 7 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of six months. 7. The accused has preferred this appeal challenging the conviction entered against and the sentence imposed on him by the trial court. The State has not filed any appeal challenging the acquittal of the accused of the offence punishable under Section 13(1)(d) read with 13(2) of the Act. 8. Heard the learned counsel for the appellant and the learned Public Prosecutor. Perused the records. 9. Learned counsel for the appellant has contended that the evidence on record is deficient to prove the demand, acceptance and recovery of any amount of illegal gratification as alleged by the prosecution. Learned counsel has contended that, there is absolutely no evidence to prove the demand for bribe allegedly Crl.A.No.1743/2005 6 made by the accused and therefore, the recovery of money, if any, from the accused is wholly inconsequential to prove the offence under Section 7 of the Act. It is also contended that, the prosecution having failed to establish any demand for bribe as alleged, no presumption under Section 20 of the Act could be raised against the accused. 10. Learned Public Prosecutor has submitted that the evidence adduced by the prosecution is cogent and convincing to prove the demand, receipt and recovery of money and that the essential ingredients of the offence under Section 7 of the Act have been amply proved by the prosecution. 11. Section 7 of the Act (as unamended) states that, whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to Crl.A.No.1743/2005 7 render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. 12. Demand of illegal gratification is sine qua non to constitute the offence under Section 7 of the Act. Mere recovery of tainted currency notes from the possession of the accused cannot constitute the offence under that provision, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe (See **N.Vijayakumar v. State of Tamil Nadu : AIR 2021 SC 766** , **C.M.Sharma v. State of A.P : AIR 2011 SC 608** and **B. Jayaraj v. State of A.P : (2014) 13 SCC 55** ). Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount Crl.A.No.1743/2005 8 as illegal gratification. But, the burden rests on the accused to displace the statutory presumption under Section 20 of the Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act (See **Mukut Bihari v. State of Rajasthan : AIR 2012 SC 2270** and **State of Punjab v. Madan Mohan Lal Verma : AIR 2013 SC 3368** ). Mere receipt of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under Section 7 of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 of the Act would not entail his conviction thereunder (See **P.** ## **Satyanarayana Murthy v. District Inspector of Police : AIR** **2015 SC 3549** ). For arriving at the conclusion as to whether all the ingredients of the offence under Section 7 of the Act, viz., demand, acceptance and recovery of the amount of illegal Crl.A.No.1743/2005 9 gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on record in their entirety (See **State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede : (2009) 15 SCC 200** ). 13. PW2, the de facto complainant, is the key witness in this case. His evidence forms the sheet anchor of the prosecution case. But, he did not fully support the case of the prosecution and he was declared hostile. 14. According to the prosecution case, demand for money was made by the accused on two occasions. The first occasion was when PW2 met the accused at his office on 13.04.2000. The second occasion was on 18.04.2000 when PW2 gave him the money. 15. PW2 has given evidence that he had submitted application in the office of the accused for obtaining contractor's licence. He would say that he had met the accused at his office several times but the licence was not issued to him. He has deposed that he was then convinced that he would get the licence only if he gave bribe to the accused. He has given Crl.A.No.1743/2005 10 evidence that he met the accused on 13.04.2000 at his office and then the accused told him that he should approach him in the proper manner to get the licence. PW2 has categorically stated that the accused did not demand any money from him. The prosecution has not examined any other witness to prove demand for money allegedly made by the accused on 13.04.2000. Therefore, there is absolutely no evidence to find that the accused had made demand for bribe or money on 13.04.2000. 16. Further, the accused has got a plea that he was not present in his office at 10.30 hours on 13.04.2000. His plea is that he had gone to Karimpuzha on the morning of that day in connection with official duties and that he came back to his office only in the evening. He has also got a plea that, on the way to Karimpuzha and back, he had visited the Division Office of the Kerala Water Authority at Shornnur. 17. The driver of the accused was examined as DW4 to prove the aforesaid plea. The relevant entry in Ext.D10 log book of the official car used by the accused was also proved. DW5, an Crl.A.No.1743/2005 11 Assistant Engineer, who was working in the Division Office of the Kerala Water Authority at Shornnur, also gave evidence regarding the visit made by the accused in that office on 13.04.2000. The trial court has accepted the evidence of these witnesses as reliable and trustworthy. I find no reason to disagree with the trial court in this regard. 18. The evidence of PW2 is that, when he went to the office of the accused on 18.04.2000 and met him, he placed a cover containing the tainted currency notes on the table before the accused. He has not given any evidence that the accused had at that time demanded money from him. He did not support the prosecution case in so far as the demand for money by the accused. The prosecution has not examined any other witness to prove that it was pursuant to any demand made by the accused that PW2 gave the money to the accused. The prosecution has no case that any witness overheard the conversation between PW2 and the accused. 19. Thus, there is absolutely no evidence to find that the accused had made any demand for bribe or money from PW2 on Crl.A.No.1743/2005 12 any day. 20. The evidence of PW2 is conspicuously silent with regard to receipt or acceptance of money by the accused. The prosecution case is that the accused received the money given by PW2 and that he put it in the pocket of his shirt. However, PW2 has not given any evidence that the accused took the money from the table and put it in his pocket. There is also no evidence of any other witness to prove so. There was no shadow witness present in the office room of the accused. There is absolutely no evidence to prove that that the accused received or accepted the money. 21. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also (See **Meena Balwant Hemke v. State of Maharashtra : AIR 2000 SC 3377** ). In the instant case, there was no shadow witness arranged to witness what happened inside the office room of the accused or to overhear the Crl.A.No.1743/2005 13 ## conversation between PW2 and the accused. 22. Of course, there is reliable evidence regarding seizure of the tainted currency notes from the possession of the accused. One of the independent witnesses in the trap team was examined as PW3. He has given evidence regarding the recovery of the money. PW11 Dy.S.P has also given evidence in that regard. There is no reason to reject the evidence of PW3 and PW11 regarding the seizure of the money. 23. The mere fact that the complainant turned hostile to the prosecution during trial would not be sufficient to discard the prosecution case in its entirety (See **Vinod Kumar v. State of Punjab : AIR 2015 SC 1206** ). However, when there is no evidence to prove demand for and acceptance of money, conviction cannot be entered against the accused under Section 7 of the Act. 24. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act. Unless there is proof of demand of illegal gratification, proof of Crl.A.No.1743/2005 14 acceptance will not follow (See **Sunkanna v. State of A.P : (2016) 1 SCC 713** ). ## 25. In **Jayaraj** (supra), a three-Judge Bench of the Supreme Court has held as follows: _“In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P11) before LW - 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext.P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned Trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery_ Crl.A.No.1743/2005 15 _of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. ...... Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent”._ (emphasis supplied) ## 26. In **Sejappa v. State : AIR 2016 SC 2045** , the Apex ## Court has held as follows: _“It is well settled that the initial burden of_ Crl.A.No.1743/2005 16 _proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act”_ . 27. The trial court reached a definite conclusion that PW2 submitted the application for obtaining licence in the office of the accused only for the purpose of initiating a vigilance case against the accused and it was done by him at the instance of some contractors who had grudge against the accused. However, the trial court found that the prosecution could prove acceptance of money from PW2 by the accused and also the recovery of money from the accused. The trial court found that, since the prosecution could establish acceptance of illegal gratification by the accused, the presumption under Section 20 of the Act would Crl.A.No.1743/2005 17 arise to fasten him with the liability for an offence under Section 7 of the Act. 28. The trial court heavily relied upon the statement allegedly made by the accused to the Dy.S.P, admitting acceptance of money from PW2, to find that the prosecution has proved that the accused received illegal gratification. The trial court relied upon the evidence of PW3 and PW11 to find that the accused had admitted receipt of amount from PW2. But, the trial court ignored the fact that the statement made by the accused to the police officer during the course of investigation of the case is not admissible in evidence in view of the embargo under Section 162 of the Code of Criminal Procedure, 1973 (for short 'the Code') and Sections 25 and 26 of the Indian Evidence Act. 29. PW11 Dy.S.P has given evidence that, on getting signal, he entered into the room of the accused with the witnesses. He has deposed that he asked the accused whether he received bribe from PW2. PW11 has given evidence that, the accused replied that, PW2 took money from his pocket and offered it to him and he (the accused) refused it but PW2 placed Crl.A.No.1743/2005 18 the money on the table and went out and then he (the accused) took the money and put it in the pocket of his shirt. PW3 has also given evidence regarding the above statement made by the accused to PW11. Further, in Ext.P5 recovery mahazar, the statement made by the accused to PW11 is extracted. 30. Section 25 of the Indian Evidence Act renders inadmissible a confession made to a police officer. It declares that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 of the Evidence Act provides that, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Therefore, the statement allegedly made by the accused to the Dy.S.P, which amounts to a confession, cannot be proved against the accused. It is pertinent here to note that the provision contained in Section 27 of the Evidence Act has no application to the facts of the case. 31. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the Crl.A.No.1743/2005 19 offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed (See **Pakala Narayana Swami v. Emperor : AIR 1939 PC 47** and **Palvinder Kaur v. State of Punjab : AIR 1952 SC 354** ). 32. Even assuming that the statement made by the accused to PW11 Dy.S.P does not amount to a confession but only an admission, even then it is not admissible by virtue of the provision contained Section 162 of the Code. 33. In **Maha Singh v. State : AIR 1976 SC 449** , the Supreme Court has held as follows: _“A question arose whether the statement of the accused before the Inspector admitting to have received the bribe was admissible in evidence. It is apparent from the evidence of the Inspector that these cases are investigated by the Anti Corruption Department which carries on its work on its own. On a complaint made to the Inspector he recorded the same and arranged the raid by_ Crl.A.No.1743/2005 20 _noting each step taken thereafter in a regular manner. What has been done by the Inspector in this case in order to detect the accused while taking the bribe comes within the term 'investigation' under Section 4(1) of the Code of Criminal Procedure, 1898. The moment the Inspector had recorded the complaint with a view to take action to track the offender, whose name was not even known at that stage, and in this case proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code. Indeed the Inspector himself stated that he examined the witnesses under Section 161 Cr.P.C and completed the investigation. The fact that he had also later on forwarded the complaint for formal registration of the case at Lahori Fate police station does not do away with the character of the investigation already commenced by the Inspector on recording the complainant's statement disclosing a cognizable offence. Therefore, any statement made by the accused in answer to questions put by the Inspector is inadmissible under Section 162, Cr.P.C and neither the prosecution nor the accused can take advantage of these answers._ Crl.A.No.1743/2005 21 _These are, therefore, excluded from consideration in this case by us”._ (emphasis supplied) 34. A person who is named in the FIR, and therefore, the accused in the eyes of law, can indeed be questioned by the police officer. Even if such statement contains only an admission but not confession, it being a statement under Section 161 of the Code, it would immediately attract the bar under Section 162 of the Code. Statement given under Section 161 of the Code, even if relevant as an admission, would not be admissible in evidence. Bar under Section 162 of the Code operates in regard to the statement made to a police officer in between two points of time, viz., from the beginning of the investigation till the termination of the same (See **Dipakbhai Jagdishchandra Patel v. State of Gujarat : AIR 2019 SC 3363** ). 35. In the instant case, PW11 Dy.S.P had registered the F.I.R in the case at 08.45 hours on 18.04.2000. The trap was laid on the same day. PW11 himself conducted the investigation of the case. Therefore, the statement allegedly made by the Crl.A.No.1743/2005 22 accused to the Dy.S.P is definitely a statement made in the course of investigation of the case to the police officer who conducted the investigation. The embargo contained in Section 162 of the Code has a wide sweep that no statement made by any person to a police officer in the course of investigation shall be used for any purpose except for the limited purpose mentioned therein. The limited purpose envisaged in that provision has no application to the facts of this case. Therefore, the statement allegedly made by the accused to PW11 Dy.S.P is not admissible in evidence and it cannot be proved against the accused. It follows that there are no foundational facts established by the prosecution to raise the presumption under Section 20 of the Act. 36. To conclude, the prosecution failed to establish demand for and acceptance of money by the accused. Therefore, conviction entered against the accused by the trial court under Section 7 of the Act cannot be sustained. 37. Consequently, the appeal is allowed. Conviction entered against and the sentence imposed on the appellant/accused by Crl.A.No.1743/2005 23 the trial court under Section 7 of the Act are set aside. The appellant/accused is found not guilty of the offence under Section 7 of the Act and he is acquitted of that offence. The bail bond executed by him is cancelled and he is set at liberty. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr**