P. BALAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932** **CRL.A.No. 547 of 2003()** **-----------------------** **CC.20/2001 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM** **....................** ## **APPELLANT/ACCUSED:** ## **-----------------P.BALAN, S/O.PARAMESWARAN ACHARY, FORMERLY VILLAGE OFFICER, ANGADIKKAL.** **BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP** **SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED** ## **RESPONDENT/COMPLAINANT:** **-------------------STATE OF KERALA, (DY.S.P., VIGILANCE ANTI CORRUPTION BUREAU) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR, ALEX M.THOMRA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. ---------------------Crl.A.No.547 OF 2003** ## **--------------------------Dated this the 10[th] day of March, 2011** ## **J U D G M E N T ~~~~~~~~~~~** The Enquiry Commissioner, Special Judge, Thiruvananthapuram in C.C.No.20/2001 on his file convicted the appellant for offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') and sentenced to rigorous imprisonment for three years and a fine of Rs.10,000/- with a default sentence of imprisonment for one year. Assailing the above conviction and sentence, this Appeal was filed. 2. The Deputy Superintendent of Police, Pathanamthitta filed the charge sheet against the appellant in Crime No.4/1999 alleging offences under Section 7 and 13(2) read with Section 13(1)(d) of the PC Act. The appellant was working as the Village Officer, Angadikkal and as such he is a public servant coming under Section 2(c) of the PC Act. PW1, the daughter of one Gopalan, was married to a Mechanic and had been residing Crl.A.No.547/2003 2 along with her husband in Angadikal. Her ration card was in the name of her father. Name of PW1 was shown as Suni in the ration card. Her actual name is Mini. She thought of having a separate ration card along with her husband and applied before the Taluk Supply Officer. She was asked to produce a certificate from the Village Officer certifying that Suni and Mini are one and the same person. She approached the appellant on 10.6.1999 to issue a certificate to that effect. PW1 was told that before issuing certificate the appellant had to make enquiries and asked PW1 to meet him on 24.6.1999. She went along with the SSLC book, identity card, birth certificate etc. She was then asked to go on 3.7.1999. According to the prosecution, the appellant didn't issue the certificate on that day also. Again PW1 approached the appellant on 6.7.1999 along with her sister and sister's husband, who was examined as PW4. The appellant demanded bribe for issuing the certificate and asked to meet him on the next day with the money. Being aggrieved, PW1 complained to PW6, the then Deputy Superintendent of Police. PW6 recorded the First Information given by PW1, which was marked as Ext.P1. On the basis of Ext. P1, PW1 registered a Crl.A.No.547/2003 3 case for which Ext.P1(c) FIR was prepared. PW6 made arrangements to trap the appellant. He arranged the independent witnesses and asked PW1 to go over to the office along with a hundred rupee note. PW1 did accordingly. PW6 smeared Phenolphthalein powder over the currency note produced by PW1. Then Phenolphthalein test was demonstrated to PW1 and the independent witnesses, for which, Ext.P10 mahazar was prepared. The currency note smeared with Phenolphthalein powder was handed over back to PW1 with instruction that she should pay the same to the appellant only if it was demanded. Thereafter, instructions were given to independent witnesses and PW1. They were sent to the office of the appellant. The investigating officer with his team and the independent witnesses followed them and took positions in and around the Village Office. PW1 was instructed to give signal after making the payment. PW1 along with PW2, her cousin brother, who is reported to be an Advocate Clerk, went to the office of the appellant. The currency note, which was marked as MO1, was handed over to the appellant. The appellant, according to the prosecution, accepted the same and kept on the Crl.A.No.547/2003 4 side of the table. PWs1 and 2 came out of the office and conveyed the signal. Thereupon, PW6 along with PW5, independent witnesses and police party rushed to the office of the appellant. PW6 disclosed their identity and MO1 was seized from the table of the appellant. Phenolphthalein test was conducted on the hands of the appellant. Test conducted on the right hand was negative. But the test conducted on the left hand was positive. For the seizure of MO1 and the Phenolphthalein test conducted there, Ext.P11 mahazar was prepared. The appellant was arrested and the investigation was proceeded with. PW7, an Inspector, conducted part of the investigation. After completing the investigation, the records were sent to the District Collector, Pathanamthitta, who was examined as PW8. After verifying the records, PW8 accorded sanction (Ext.P2) for prosecuting the appellant. Thereafter the charge sheet was laid before the trial court. 3. Responding to the process issued the appellant entered appearance. After furnishing the copies of the records, the appellant and the prosecution were heard. Finding that Crl.A.No.547/2003 5 there were materials to sent the appellant for trial, charge was framed. When the particulars were read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. On the side of the Prosecution, PWs1 to 8 were examined. Exts.P1 to P16 were marked. MOs 1to 5 series were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 13(1)(b) Cr.P.C. The appellant denied the incriminating circumstances. He, in a separate statement admitted that PW1 had been to the office with an application to issue a certificate for obtaining a ration card. But he denied the demand for illegal gratification and further stated that the appellant had placed a folded hundred rupee note and requested to issue the certificate. Despite the request of the appellant to take back the cash, PW1, didn't heed and left the office. Though he sent two of his subordinates to fetch PW1 to take back the money, she left the scene. The appellant entered the witness box and adduced evidence as DW1 in support of his defence. The learned Special Judge, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the impugned conviction and sentence. Crl.A.No.547/2003 6 4. PW1, in the box, didn't support the prosecution. Though she admitted that she lodged Ext.P1 First Information Statement, she had deposed that Ext.P1 was lodged since she was told by a nearby shop owner that the appellant has been delaying the issuance of certificate for not paying the bribe. She denied the demand by the appellant. According to PW1, even without demand she placed MO1 over the table of the appellant. In the first stretch, PW2 had deposed that the appellant accepted the amount. Then he changed his version and stated that when PW1 placed the money over the table, the appellant stated that he didn't want it and he thrashed away with his hands. PW2 also denied the demand. PWs 1 and 2, with the permission of the court, were cross examined by the Public Prosecutor. Nothing was revealed out in support of the prosecution. 5. PW4 is the brother-in-law of PW1. He was cited by the prosecution to prove the demand of bribe. He also didn't support the prosecution regarding the demand. He had deposed that on various occasions they had approached the appellant for Crl.A.No.547/2003 7 the certificate and that they understood that since they didn't pay the bribe the certificate was not issued. Therefore, they decided that they didn't want the certificate after paying the bribe. 6. PW5, the independent witness, had supported the prosecution regarding the seizure of MO1 note from the table of the appellant as well as the Phenolphthalein test. 7. Having carefully gone through the evidence of PWs 5, 6 and Exts.P10, P11, I find little reason to disbelieve the prosecution case regarding the recovery of MO1 from the table of the appellant. So also, there is no reason to disbelieve the evidence of PWs 5 and 6 that when Phenolphthalein test was conducted on the left hand of the appellant, the hand as well as the solution turned pink. As against the positive result of the Phenolphthalein test, the learned counsel for the appellant relied upon the evidence of PW2 that when PW1 placed MO1 before the table of the appellant it was thrashed away by the appellant with hands and that is how the Phenolphthalein turned positive. Crl.A.No.547/2003 8 However, carefully going through the evidence of PWs 5 and 6, I find little reason to interfere with the finding of the Special Judge that MO1 was seized from the table of the appellant and that the positive result of Phenolphthalein test is an indication that the appellant had touched MO1 currency note. 8. The question then arises is whether there is demand and acceptance by the appellant. According to the learned counsel for the appellant, there was no demand as well as acceptance. In the event there was acceptance, according to the learned counsel, the appellant should have taken MO1 and either to put it in his pocket or in the drawer of the table. Referring to the evidence of PWs 1 and 2 and referring to various decisions mentioned in the impugned judgment as well as the decision reported in Benarsi Dass v. State of Hariyana [AIR 2010 SC 1589], the learned counsel would submit that there is no proof regarding the demand and acceptance. On the other hand, referring to the decision in M.Narasimha Rao v. State of A.P. [AIR 2001 (SC) 318], the learned Public Prosecutor would submit that there is sufficient evidence on record to come to a Crl.A.No.547/2003 9 conclusion regarding the demand and acceptance of MO1 by the appellant. 9. Ext.P4 is the application filed by PW1 requesting to issue a certificate so as to enable her to obtain her ration card. It is dated 3.7.1999. It is crucial to note that the appellant had even not acknowledged the same and no action was taken. It appears that there was some delay on the side of the appellant. That delay certainly indicates a bad motive. Though there is nothing suggested to PW1 to come to a conclusion that PW1 had any ulterior motive to cook up a case like this and there are some strong circumstances in favour of the demand, in the light of the denial evidence of PWs1 and 2 regarding demand and acceptance and in the light of the decision in Benarsi Dass v. State of Hariyana, I find that the benefit of doubt can be given to the appellant. It appears that PWs 1 and 2 were won over by the appellant. Though there are strong suspicious circumstances against the appellant, those suspicious circumstance would not substitute for the evidence regarding demand and acceptance of illegal gratification. In the above circumstance, giving the Crl.A.No.547/2003 10 benefit of doubt, I find that the conviction and sentence under challenge are to be set aside. 10. In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. The fine amount, if any, paid shall be refunded to the appellant. ## **(P.S.GOPINATHAN, JUDGE)** **ps/15/3**