P. K. Vikraman v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 1ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939 CRL.A.No. 887 of 2004 CC 11/2002 of ENQUIRY COMMISSIONER AND SPECIAL JUDGE,TRIVANDRUM APPELLANT(S)/ACCUSED. P.K.VIKRAMAN,S/O.KUNJOLA, FORMER SECRETARY, GRAMA PANCHAYATH, KAVALAM,, ALAPPUZHA. BY ADVS.SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND RESPONDENT(S)/COMPLAINANT.: STATE REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS ERNAKULAM (DEPUTY SUPERINTENDENT OF POLICE, VACB, ALAPPUZHA). PUBLIC PROSECUTOR SRI. B. JAYSURYA FOR VACB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. ..................................................... ## Crl.A. No. 887 of 2004 ..................................................... ## Dated this the 1[st] day of March, 2018 ## JUDGMENT The appellant is the accused in C.C. No. 11 of 2002 on the files of the court of the Enquiry Commissioner and Special Judge , Thiruvananthapuram. 2. The prosecution case is that the appellant demanded and accepted bribe on 22-7-1998 at about 2 p.m. On the basis of Ext. P1 statement given by PW1, PW6 registered Ext. P10 FIR. The investigation was conducted by PW8. After completing the investigation, CW24 (not examined) filed the final report before the Court. 3. In the trial, PW1 to PW8 were examined and Exts. P1 to P20 were marked for the prosecution, besides identifying MO1 to MO4. On the side of the defence, -: 2 :- Crl.A. No. 887 of 2004 DW1 was examined. After evaluating the evidence, the court below found the appellant guilty under Section 7 of the Prevention of Corruption Act and convicted him there under. The appellant was sentenced to rigorous imprisonment for one year and a fine of Rs. 3000/- with a default clause for rigorous imprisonment for three months. ## 4. Heard. 5. The learned counsel for the appellant has argued that since the prosecution failed to establish that the appellant demanded and accepted MO1 series as bribe, the conviction and sentence passed by the court below cannot be sustained. 6. The appellant was working as Secretary of Kavalam Grama Panchayath during the period from 4-091997 to 22-7-1998. PW1 was the Contractor for conducting maintenance work of the pathway leading from -: 3 :- Crl.A. No. 887 of 2004 PWD road to Perincherikulam in Ward No. 4 in Kavalam Grama Panchayath. PW1 stated that the appellant did not make any demand for the bribe. PW1 had taken only a petty work, which was the first work in his carrier as a Contractor. Therefore, he waited for advance amount. However, PW1 felt that the advance amount was not paid as he did not pay bribe to the appellant. Therefore, PW1 went to the office of the appellant on 22-7-1998 along with the vigilance party. The vigilance party waited at a distance from the office. When PW1 entered into the room of the appellant, the appellant was not there inside the room. PW1 placed the money inside the drawer of the table of the appellant when the appellant was not found in the said room. Immediately, the appellant reached the room. PW6 and party also reached the room immediately. PW6 asked PW1 about MO1 series of notes. Then PW1 stated that he put the said notes inside the drawer of the table of the appellant. Then, PW6 directed the appellant to take the money from the drawer. With reluctance, the -: 4 :- Crl.A. No. 887 of 2004 appellant had taken the money from the drawer. 7. PW2 was the independent witness examined by the prosecution to prove the occurrence. However, PW2 did not support the prosecution case. PW5 was another witness to prove the occurrence. He stated about the recovery of tainted notes from the drawer of the table of the appellant. PW5 did not witness the handing over of the money by PW1 to the appellant. Eventhough two police men were sent along with PW1 to witness the transaction, they were not examined by the prosecution. PW5 did not state about the demand and acceptance of the bribe by the appellant. PW6 also proved the recovery of tainted MO1 series of notes from the drawer of the table of the appellant. However, nobody had seen the acceptance of MO1 series of notes by the appellant. 8. Even according to the prosecution, MO1 series of notes were not recovered from the person of the appellant. -: 5 :- Crl.A. No. 887 of 2004 Therefore, the burden on the prosecution is more. The prosecution had to prove that the appellant demanded and accepted MO1 series of notes as bribe. However, there is absolutely no evidence before the court to prove that the appellant demanded or accepted MO1 series of notes. Merely because the fingers of the appellant answered affirmative in phenolphthalene test, it cannot be said that the burden of the prosecution is over by that. So also, the mere recovery of the tainted notes from the drawer of the table of the appellant is not sufficient to find the appellant guilty of the offence under Section 7 of the P.C. Act. 9. The three Judge Bench of the Apex Court in B.Jayaraj v. State of Andra Pradesh [2014 KHC 4199: (2014) 13 SCC 55 ] held that if proof of demand and acceptance of illegal gratification is absent, no presumption under Section 20 of the P.C. Act can be drawn. The Apex Court further held in Jayaraj (supra) that mere possession and recovery of currency notes from -: 6 :- ## Crl.A. No. 887 of 2004 an accused without proof of demand, would not establish an offence under Section 7 of the P.C. Act. Another three Judge Bench of the Apex Court in Sathyanarayana Murthy P. v. District Inspector of Police and Another [2015 KHC 4615:AIR 2015 SC 3549] held that the proof of demand of illegal gratification is the gravamen of the offence under Section 7 of the PC Act and in the absence thereof, unmistakably the charge therefor, would fail. 10. In this case, no evidence is available from the side of the prosecution to prove that bribe was demanded or accepted by the appellant. The proof of demand and acceptance of illegal gratification is sine qua non for constituting an offence under Section 7 of the P.C. Act. Therefore, the prosecution is duty bound to establish that there was illegal demand of bribe and acceptance thereof, and it has to be founded on facts. In this case, the prosecution failed to prove both the demand and -: 7 :- Crl.A. No. 887 of 2004 acceptance of bribe money by the appellant from PW1. In the said circumstances, it cannot be said that the prosecution succeeded in establishing that the appellant committed the offence under Section 7 of the P.C.Act and consequently, the conviction and sentence passed by the court below cannot be sustained. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 7 of the P.C. Act and the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged. Sd/-B. SUDHEENDRA KUMAR, JUDGE. ani/