PRADEEPKUMAR v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 22ND DAY OF AUGUST 2017/31ST SRAVANA, 1939** **CRL.A.No. 746 of 2011 ( ) --------------------------** **AGAINST THE JUDGMENT IN CC 64/2008 of ENQ.COMMR. & SPL.JUDGE,THIRUVANANTHAPURAM DATED 20.04.2011** **APPELLANT/ACCUSED :-** **--------------------** **PRADEEPKUMAR, FORMERLY C.I. OF POLICE, VELLARADA POLICE STATION, THIRUVANANTHAPURAM.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.V.C.SARATH SRI.M.REVIKRISHNAN** **RESPONDENT/COMPLAINANT :- --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R BY SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2017, THE COURT ON 22.08.2017 DELIVERED THE FOLLOWING:** **rkj** ## **P.UBAID, J.** ==================================== **Crl.Appeal No.746 of 2011** ==================================== Dated this the 22[nd] day of August, 2017 ## **JUDGMENT** The appellant herein was the Circle Inspector of Police, Vellarada in Thiruvananthapuram District during the period from 05.01.2006 to 25.02.2006. He faced prosecution before the Special Court(Vigilance), Thiruvananthapuram in C.C.No.64 of 2008 on the allegation that at about 6.55 p.m. on 25.02.2006, he accepted an illegal gratification of Rs.1,000/- at his office from one Sathyadas as a reward for allowing illegal transportation of four loads of sand for some construction work undertaken by the said Sathyadas. According to the prosecution, demand was made by the Circle Inspector on 24.02.2006, when the said Sathyadas approached him for permission for transportation of sand. At about 12.30 p.m., Sathyadas approached the Thiruvananthapuram Unit of the Vigilance and Anti Corruption Bureau(VACB), and made a complaint. On the said complaint, the Inspector of Police attached to the said unit registered a Crl.Appeal No.746 of 2011 2 crime, and the Deputy Superintendent of Police of the said Unit arranged a trap. After demonstrating phenophthalin test to the complainant, and the trap witnesses arranged by the Dy.SP., Sathyadas was instructed to approach the accused at his office, and make payment, if demanded. Accordingly, the complainant Sathyadas, accompanied by a public servant met the appellant at his office, and made payment of the tainted money. On getting the pre-arranged signal, the vigilance team led by the Dy.S.P. reached there seized the phenolphthalin tainted currency conducted scientific test there which turned positive, and arrested the Circle Inspector on the spot. After investigation, the VACB submitted final report in Court. 2. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The prosecution examined ten witnesses in the trial court, and proved Exts.P1 to P13 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating Crl.Appeal No.746 of 2011 3 circumstances, and projected a defence that he was in fact viciously trapped by the complainant and some members of a sand mafia. His case is that one UnniPilla, a private contractor had undertaken the work of construction his new house, but when an astrologer told him that it was not the auspicious time to start the work, he stopped the work, and gave a direction accordingly to the contractor. Some advance payment was already made to the contractor Unni Pilla, and he had also purchased some materials. The balance amount with him had to be returned. Unni Pilla entrusted the said amount with the complainant who had worked under him for some time, and the complainant agreed to pass on the amount to him. By making use of this amount, the complainant and some members of the sand mafia at the locality made a criminal design to trap him, and accordingly, they made a false complaint before the VACB. To prove or probabilise the defence case, the accused examined three witnesses on his side as DW1 to DW3, and also proved Exts.D1 to D11 documents. MO1 to MO7 properties were also identified during trial at the Crl.Appeal No.746 of 2011 4 instance of the prosecution. On an appreciation of the evidence adduced on both sides, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.5,000/- each under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act by judgment dated 20.04.2011. Aggrieved by the judgment of conviction, the accused has come up in appeal. 3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant has in fact no dispute regarding the seizure of tainted money from his office, and the accused would admit this fact subject to the contention otherwise, that he had not at any time made any demand for illegal gratification, that he was in fact viciously trapped by using the money due to him from UnniPillai, and that the complainant made a false complaint against him, at the instance of the members of the sand mafia at the locality. The learned counsel also submitted that the defence projected by the accused is probabilised by the evidence given by the independent trap Crl.Appeal No.746 of 2011 5 witness, and also the evidence given by the defence witnesses. The learned counsel also submitted that on legal ground itself, the accused is entitled for acquittal, because, the prosecution sanction in this case stands not properly proved according to law. 4. Of the ten witnesses examined in the trial court, the main witnesses are PW1, PW2, PW4 and PW10. PW5 is the Circle Inspector who registered the crime. PW1 is the complainant and PW2 is the public servant arranged as trap witness by the VACB. PW10 is the Deputy Superintendent of Police who laid the trap, and PW9 is the Vigilance Officer who closed the investigation, and submitted final report in Court. 5. Let me first examine whether the prosecution sanction is proved properly according to the law. Ext.P8 is the prosecution sanction issued by the Additional Chief Secretary of the Government, and PW6 is the Under Secretary examined to prove the sanction. PW6 has no case in evidence that he had examined or perused the necessary files put up before the Additional Chief Crl.Appeal No.746 of 2011 6 Secretary, and he is also not in a position to say whether the Additional Chief Secretary granted sanction on a perusal of the entire materials anxiously and properly as required under the law, or on an independent application of mind. Following the decision of the learned Single Judge of this Court in **Antony Cardoza v. State of Kerala [2011(1) KLT 946]** , and some are the decisions on the point, this Court settled the position in **Gurudas v. State of Kerala [2015(3) KLT 749], Savithri v. Deputy Superintendent, Vigilance and Anti Corruption Bureau [2015(3) KLT 909]** , and **Prakash Pai v. State of Kerala [2015(3) KLT 989** ] that the prosecution sanction granted under Section 19 of the PC Act will have to be proved by the person who granted the sanction, and that somebody else cannot be brought to prove the sanction on a claim that he can identify the signature of the authority who granted sanction. Only the person who granted sanction can come to Court, and say that he granted the sanction on a careful and anxious consideration of all the materials and papers, and also on an application of mind independently to the facts of Crl.Appeal No.746 of 2011 7 the case. That responsibility or burden cannot be taken over by somebody else. There is no explanation why the prosecution did not examine the Additional Chief Secretary to prove the Ext.P8 prosecution sanction. PW6 is not in a position to say what all documents and materials were examined by the Additional Chief Secretary, whether the Additional Chief Secretary had properly and anxiously considered and examined the materials placed before him, and whether the Additional Chief Secretary granted sanction on an application of mind independently to the facts of the case. PW6, who was only a Under Secretary, cannot prove the essentials which the Additional Chief Secretary will have to prove. Thus, I find that the prosecution sanction in this case stands not properly proved according to law, and on this ground itself, the accused is entitled for acquittal in view of the clear bar under Section 19(1) of the Prevention of Corruption Act. 6. Now let me come to the facts of the case. It is well settled in so many decisions that for a successful prosecution under Section 7 or under Section 13(1)(d) read Crl.Appeal No.746 of 2011 8 with Section 13(2) of the PC Act on the allegation of acceptance of illegal gratification as a reward for doing some illegal favours, the prosecution must prove two very important essential elements. One is demand, and the other is acceptance. It is well settled that mere recovery of phenolphthalein tainted money from the possession of the public servant will not by itself prove acceptance of illegal gratification. In this case, the accused would not dispute the fact that he had received an amount of Rs.1,000/- from PW1. But his explanation is that he accepted it , or he received it on the believe that it was the money sent to him through PW1 by his contractor UnniPillai. Let me examine whether this defence projected by the accused is in any manner probabilised. 7. The case of PW1 is that he first approached the accused at his office on 24.02.2006 at noon, and made an oral request for permission to transport four loads of sand illegally for some construction works undertaken by him. That PW1 had undertaken some works is proved by the evidence of PW3. When the complainant says that he 9 Crl.Appeal No.746 of 2011 had brought some materials like granite stones at the plot of construction, PW3 would say that nothing of that sort was brought there by PW1. She would only say that the construction work was entrusted to PW1, but he had not actually purchased or brought any material there. Anyway, let me come to the other aspects. The case of PW1 in the Ext.P1 complaint is that he was advised and instructed by one Shiju to approach the Circle Inspector for permission for transportation of sand illegally, and it appears that the said Shiju told the complainant that the Circle Inspector would permit him, if he is paid some bribe. The said Shiju is examined as DW3 by the accused. His evidence is that he had in fact been abroad at the relevant time, and that he had no occasion to meet the complainant to give such an advise or instruction. Anticipating such a flaw or falsity in the case, the complainant made an attempt to corrent things in evidence that he was so adviced and told by somebody who was in charge of the lorry of Shiju. Such a twist or change of versions cannot be accepted. 8. The case of the complainant in his complaint 10 Crl.Appeal No.746 of 2011 is that the Circle Inspector demanded Rs.1,000/- per load of sand, and thus for the four loads he demanded Rs.4,000/-. But the money paid in this case is only Rs.1,000/-. The complainant has no explanation how he happened to make payment of only Rs.1,000/-, when the demand made by the Circle Inspector was for Rs.4,000/-, or for Rs.1,000/- per load of sand. The prosecution also did not elicit any explanation from PW1 regarding this. Anyway, the only evidence to prove demand is that of the complainant. On an overall evaluation of the evidence given by the complainant, I find that the story of demand told by the complainant is suspicious. One reason for such suspicion is the evidence given by DW3 that he had not in fact given any advise or instruction to approach the Circle Inspector for making payment of bribe, and the other reason is that there is no explanation from the complainant as to why he paid only Rs.1,000/-, when the demand was for Rs.4,000/-. He has no case that any bargain was made, or that the Circle Inspector finally agreed for Rs.1,000/- for the four loads of sand on bargain. It is here the defence projected by the accused 11 Crl.Appeal No.746 of 2011 assumes importance. 9. DW1 is a Vicar who had come to the office of the Circle Inspector on 25.02.2006 at about 6.30 p.m. for some other purpose. According to the accused, the complainant entered his office just when the Vicar left the office. PW1 has stated in evidence that he had contracted the accused over telephone just before coming to his office with the tainted money. DW1 stated in evidence that while he was in conversation with the Circle Inspector at his office, a telephone call came to the Circle Inspector, and during the conversation with the other man, he heard the Circle Inspector referring to one UnniPillai. Here also, the defence case is probabilised, that the amount handed over to the accused by PW1 is the amount entrusted by Unni Pillai. 10. PW2 is the public servant arranged as trap witness by the prosecution. At the first part of his evidence, he stated that he had accompanied the complainant to the office of the Circle Inspector, he remained outside when the complainant entered inside to meet the Circle Inspector, he Crl.Appeal No.746 of 2011 12 could over hear the conversation, and that he had also seen the complainant handing over the tainted money to the Circle Inspector. The statements given by him in crossexamination will show that he could not have in fact seen the things that transpired inside the office, or that he could not have actually seen the complainant handing over anything to the accused. Anyway, this does not assume importance in this case because, the accused has practically admitted the fact that he had received Rs.1,000/from the complainant, subject to the contention in defence otherwise. In cross-examination, PW2 also stated that he had heard the complainant referring to one Unni Pillai during his conversation with the Circle Inspector. When PW2 stated that he had heard the complainant referring to one Unni Pillai during his conversation with the Circle Inspector, the learned legal advisor declared the witness hostile, and sought permission of the Court to crossexamine him. I do not know why the legal advisor sought permission to cross-examine the witness just because, he mentioned the name of Unni Pillai. It appears that the Crl.Appeal No.746 of 2011 13 prosecution knows the significance and importance of the name, Unni Pillai. Otherwise the learned legal advisor would not have sought permission to cross examine the witness just because, he referred to the name Unni Pillai. If the name Unni Pillai has no significance in this case, the legal advisor would have ignorant it, and he would not have declared the witness hostile. It is here, the prosecution case becomes slightly doubtful. 11. In so many decisions, the Honourable Supreme Court has held that mere recovery of tainted money from the possession of the public servant will not be sufficient to convict him under Section 7 or under Section 13(1)(d) read with Section 13(2) of the PC Act, and that there must be clear evidence to prove demand and acceptance. The prosecution must prove that illegal gratification was demanded by the accused as a reward for doing something illegal, and also that the money was accepted by the public servant as bribe, and not otherwise. In this case, I find that the case of PW1 regarding demand is suspicious. Crl.Appeal No.746 of 2011 14 12. It has come out in evidence that the complainant had given a statement under Section 164 Cr.P.C. It is not known what happened to the said statement. It is not known what are the statements given by the complainant under Section 164 Cr.P.C. 13. I find on an examination of the entire materials including the defence evidence adduced by the accused that the defence projected by the accused is to an extent probable. It is the definite case of the accused that he was viciously trapped by PW1, and some members of the sand mafia at the locality. If there is anything to doubt the truth and genuineness of the trap arranged by the police, the benefit of that doubt will have to be given to the accused. Following the decision of the Honourable Supreme Court in **Ramjanam Singh v.State of Bihar [AIR 1956 Supreme Court 643]** , and the decision of this Court in **Cherian Luckose v. State of Kerala [AIR 1968 Kerala 60]** , this Court held in Prakash Pai's case (cited Supra) that a trap for a trap, at the instigation, or at the instance of somebody who is interested in such a trap, cannot be said 15 Crl.Appeal No.746 of 2011 to be a genuine or legitimate trap. Such a trap is a vicious trap or an illegitimate trap. I find that the defence projected by the accused is to an extent probable, though it is not satisfactorily proved. The accused has been able to create some suspicion regarding the truth of the prosecution case. As already stated a clear and satisfactory case of demand as meant and required under Section 7 or under Section 13 (1)(d) of the PC Act is not proved in this case. The case of demand stated by PW1 in evidence is to an extent suspicious for the two definite reasons stated by the Court. When things are thus suspicious in nature, it would be unjust and illegal to find the public servant guilty. Ofcourse, even otherwise I find that the accused is entitled for acquittal because, the prosecution sanction stands not properly proved in this case according to law. In the result, this Appeal is allowed. The appellant herein is not found guilty of the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, and accordingly, he is acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. The 16 Crl.Appeal No.746 of 2011 conviction and sentence against him in C.C.No.64 of 2008 of the court below will stand set aside. The accused will stand released from prosecution, and the bail bond, if any, executed by him will stand discharged. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence will be released. Sd/- **P.UBAID, JUDGE** rkj //TRUE COPY// P.A. TO JUDGE