P. Jayachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937** ## **CRL.A.No. 1882 of 2007 ( )** **--------------------------(CC.NO. 43/2002 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE)** **--------------------** **APPELLANT/ACCUSED:** **-------------------------------------** **P.JAYACHANDRAN, S/O.PALANISWAMY NADAR, RATNAKESH, 4/355A, GANDHI ROAD, KOZHIKODE, (MANAGER, M/S. SARADA INDUSTRIES MUTTIL, WAYANAD).** ## **BY ADV. SRI.A.SUDHI VASUDEVAN** **RESPONDENT/COMPLAINANT:** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2015, THE COURT ON 14-01-2016 DELIVERED THE FOLLOWING:** **sts** ## **P.UBAID, J. ~~~~~~~~~~ Crl.A No.1882 of 2007 ~~~~~~~~~~~ Dated this the 14[th] January, 2016** ## **J U D G M E N T** The appellant herein was the Manager of one M/s.Sarada Industries, Muttil, Wayanad. On the allegation that on 28.7.2001 at 10.05a.m at the office of the District Collector, Wayanad, the appellant made payment of ₹ 10,000/- to the District Collector along with a written request for expediting steps for financial assistance from the District Industries Centre, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge(Vigilance), Kozhikode under Section 12 of the Prevention of Corruption Act (for short “the P.C Act) in C.C 43 of 2002. The accused was arrested on the spot on the complaint of the District Collector, and a crime was registered by the Sub Inspector of Police, Kalpetta against the accused. Later, the F.I.R was transferred to the Vigilance and Anti-Corruption Bureau (VACB), Wayanad, where the F.I.R was registered. After investigation, the VACB submitted final report before the trial Court. **Crl.A No.1882 of 2007** **2** 2. The appellant/accused entered appearance before the trial court and pleaded not guilty to the charge framed against him under Section 12 read with Section 7 of the P.C Act. The prosecution examined seven witnesses including the District Collector, and proved Exts.P1 to P14 documents. The amount of 10,000/- paid by the accused₹ and seized by the Police on the complaint of the District Collector was identified during trial as MO1 series. 3. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances, and submitted that the bundle containing the amount of ₹ 10,000/- was not in fact paid or meant to be paid to the District Collector and the District Collector probably made complaint against him on a misapprehension, because the bundle was tied along with the request given to the District Collector. DW1 was also examined in defence by the accused. 4. On an appreciation of the evidence adduced by the prosecution and the defence, the learned trial judge found the accused guilty under Section 12 read with Section 7 of the P.C Act. On conviction, he was sentenced to undergo rigorous imprisonment for one year and to pay a **Crl.A No.1882 of 2007** **3** fine of 1000/- by judgment dated 11.9.2007 in C.C.43 of₹ 2002. Aggrieved by the said judgment of conviction, the accused has come up in appeal. 5. When this appeal came up for hearing, the learned counsel for the appellant submitted that the allegations made by the prosecution against the appellant will not in fact constitute the offence meant and defined under Section 12 of the P.C Act. On the other hand, the learned Public Prosecutor submitted that payment of ₹ 10,000/- by the accused, which the District Collector rejected, stands well proved by the evidence of District Collector and also his personal staff. PW1, examined by the prosecution, is the District Collector who made complaint against the accused. PW2 is the District Collector's Personal Security Guard and PW3 is the District Collector's Peon. These two witnesses fully supported the District Collector during trial. PW4 is the General Manager of the District Industries Centre, whose evidence is not very material in this case. PW5 is the Sub Inspector of Police, Kalpetta, who initially registered Ext.P7 F.I.R on the complaint of the District Collector. He also seized MO1 series currency paid by the accused to the District Collector as per Ext.P4 seizure **Crl.A No.1882 of 2007** **4** mahazar. PW6 is the Managing Director of M/s. Sarada Industries. His evidence is that he had entrusted an amount of 10,000/- with the accused for some other purpose, and₹ it was not intended to be paid to the District Collector. PW7 is the Deputy Superintendent of Police, who re-registered the F.I.R (Ext.P13) and investigated the case. 6. The case on facts stands proved by the evidence of PW1 well corroborated by the evidence of PW2 and PW3. The District Collector's evidence is that on 28.7.2001 the accused visited him, and made Ext.P1 request as regards a matter with the District Industries Centre of which the District Collector is the Chairman. Ext.P1 is the request given by the accused in his capacity as Manager of M/s. Sarada Industries. The District Collector stated that along with Ext.P1 request the accused also handed over a cover containing something. When he asked the accused, what it contained, he replied that it was some money meant for the District Collector. When the District Collector opened the cover he found some currency notes. Immediately he called the police and made a complaint in writing. The accused was arrested on the spot, and the currency along with Ext.P1 request was seized by the police as per mahazar. This is **Crl.A No.1882 of 2007** **5** the evidence given by PW2 and PW3 also. The evidence given by these two witnesses is that immediately after the accused in this case visited the District Collector, they were called to the chambers by the District Collector, and there they saw a bundle containing currency notes on the table. The District Collector immediately called the police, and made a complaint in writing. The accused was arrested on the spot on the basis of the said complaint, and the amount seen in the cover was seized by the Sub Inspector as per Ext.P4 mahazar. 7. The evidence given by PW1 to PW3 on facts stands not in any manner discredited. There is absolutely no reason why the District Collector should make a false complaint against the accused, or why the personal staff of the Collector should give false evidence against him. The evidence of DW1 will not in any manner help the prosecution. 8. The learned counsel for the appellant submitted that even if the things are admitted on facts, it will not constitute the offence of abetment as defined under Section 12 of the P.C Act. The learned counsel submitted that the cover containing currency notes was not in fact paid to the **Crl.A No.1882 of 2007** **6** District Collector by the accused, and the accused in fact happened to hand over Ext.P1 request along with the cover, by mistake. The District Collector probably thought that it was bribe meant for him, and without verifying what it was, and without even ascertaining the things from the accused, the District Collector immediately called the Police and got the accused arrested. 9. On an appreciation of the evidence given by PW1 to PW3, I find that a cover containing an amount of ₹ 10,000/-, identified during trial as MO1 series was in fact consciously handed over to the District Collector by the accused along with Ext.P1 application, and it was meant as a reward to the District Collector for expediting things on the request of the complainant on behalf of M/s.Sarada Industries for the benefits from the District Industries Centre. 10. In **Sekharan v. State of Kerala** [2015 (3) KLT SN2 C.No3), this Court held that a mere offer to pay illegal gratification is not punishable as a case of abetment under Section 12 of the P.C Act. This Court held that when illegal gratification is paid, the Public Servant will have two options. He can either accept it, knowing that it is illegal **Crl.A No.1882 of 2007** **7** gratification, in which case he will be liable to be prosecuted under the P.C Act. The person who paid the amount also will be liable as abettor under Section 12 of the P.C Act. The other option available to the Public Servant is to reject the amount and proceed against the person who paid the amount, under Section 12 of the P.C Act. Sekharan's case was not in fact a case of payment of illegal gratification. In the said case, the prosecution alleged only a mere offer to pay illegal gratification. But here, it is not merely an offer. A cover containing 10,000/- was handed over to the₹ District Collector by the accused. The District Collector rejected the amount and proceeded against the person who made payment. Payment of illegal gratification is different from acceptance of illegal gratification. When illegal gratification is paid to a public servant, there can be a prosecution against the public servant, only if the amount is accepted by the public servant. Here the amount was not accepted by the public servant. When the accused made payment of bribe, the District Collector rejected it, called the police, and made a complaint against the accused. This is not a case where Sekharan's case can be applied, because this is not merely a case of offer to pay illegal gratification. **Crl.A No.1882 of 2007** **8** 11. Of course, the VACB has made some confusion in the final report as regards the nature of the offence alleged. It is alleged that the accused attempted to pay bribe to the District Collector. 'Attempt' meant under Section 15 of the P.C Act is different from abetment meant under Section 12 of the P.C Act. What is made punishable under Section 12 of the Act is abetment of an offence punishable under Section 7 or 11 of the P.C Act, whereas, what is made punishable under section 15 of the P.C Act is any attempt on the part of a public servant to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of Section 13 of the P.C Act. Even while alleging abetment of an offence, the prosecution wrongly used the word' attempt' in the final report. Anyway, charge was rightly framed against the accused by the learned trial Judge under Section 12 of the P.C Act, and on an appreciation of the evidence given by the District Collector and other witnesses, the learned trial Judge rightly found the accused guilty under Section 12 of the P.C Act. 12. On an appreciation of the evidence given by PW2 and PW3, I find that MO1 series currency of 10,000/-₹ contained in a packet was handed over to the District **Crl.A No.1882 of 2007** **9** Collector by the accused along with Ext.P1 request made by him in his capacity as Manager of M/s. Sarada Industries. I find that the amount was voluntarily and consciously handed over by the accused to the District Collector along with Ext.P1 application. The District Collector, as an honest public servant, rejected it, and proceeded against the accused for appropriate prosecution. The case on facts alleged by the prosecution stands well proved by the evidence of PW1 to PW3. The defence could not bring out anything in the cross-examination of the District Collector, or his personal staff to discredit their evidence. Payment of ₹ 10,000/- meant as bribe to the District Collector by the accused herein stands well proved. All the witnesses identified the MO1 series currency during trial as the amount handed over to the District Collector by the accused along with Ext.P1 request. I find that the accused was rightly found guilty by the learned trial Judge and he was rightly convicted under Section 12 read with Section 7of the P. C Act. 13. In view of the findings above, the conviction against the appellant will have to be confirmed. However, I feel the necessity of some modification in the sentence **Crl.A No.1882 of 2007** **10** imposed by the court below. The sentence imposed by the learned trial Judge is rigorous imprisonment for one year, and a fine of 1,000/-. In the particular facts and₹ circumstances, I feel that the minimum sentence possible as on the date of commission of the alleged offence will be the adequate sentence. After the 2014 amendment to the P.C Act, the minimum sentence prescribed under Section 12 of the Act is imprisonment for three years, and the maximum is imprisonment for seven years. But as on the date of commission of the alleged offence in this case on 28.7.2001, the minimum sentence prescribed under Section 12 of the P.C Act was imprisonment for six months, and the maximum was imprisonment for five years. I feel that simple imprisonment for six months with a fine sentence of ₹ 1000/- as imposed by the trial court will be the adequate and proper sentence in this case. To this limited extent of modification in sentence, the appeal can be allowed in part. In the result, this appeal is allowed in part to the very limited extent of modifying and reducing the sentence imposed by the trial court. The conviction made by the trial court against the appellant under Section 12 read with 7 of the P.C Act will stand confirmed. However, the jail sentence **11** ## **Crl.A No.1882 of 2007** will stand modified and reduced to simple imprisonment for six months. The fine sentence imposed by the trial court, with the default sentence thereon, is maintained. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge