Shri. A. Vijayan v. Inspector of Police, CBI/SPE, Kochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 CRL.A.No. 80 of 2004(B) ----------------------CC.8/2002 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT/ ACCUSED: ---------------------- SHRI. A. VIJAYAN, FARM SUPERINTENDENT CENTRAL PLANTATION CROP, RESEARCH INSTITUTE (CPCRI), KASARAGOD, KERALA (R/O CHAITRAM, KOTTAVALAPPIL, ADUKKATHVAYAL, KASARAGOD, KERALA.) BY ADV. MR. P.VIJAYA BHANU MR. M.REVIKRISHNAN RESPONDENT/COMPLAINANT: --------------------------- THE INSPECTOR OF POLICE CBI/SPE, KOCHI, REPRESENTED BY SPECIAL PROSECUTOR, CBI, HIGH COURT OF KERALA, ERNAKULAM. MR. P.CHANDRASEKHARAN PILLAI,SC CBI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC ## **P.S.GOPINATHAN, J.** **- - - - - - - - - - - - - - - - - - - - - - -** CRL.A.No. 80 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of June , 2011 ## **J U D G M E N T** The appellant is the accused in C.C.8/2002 on the file of the Special Judge (SPE/CBI)-II, Ernakulam. The learned Special Judge, by judgment dated 24.12.2003 found that the prosecution had succeeded to establish offence under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act against the appellant. Having found guilty, the appellant was convicted and sentenced to rigorous imprisonment for 6 months and a fine of Rs.2000/- under Section 7; and rigorous imprisonment for one year and a fine of Rs.3000/- under section 13(2) r/w 13(1)(d) of the PC Act. Assailing the above conviction and sentence, this appeal was filed. 2. The appellant was prosecuted by PW.10, the Inspector, CBI, Cochin alleging that the appellant was employed as Farm Superintendent in the Office of the Central Plantation Crops Research Institute (CPCRI), Kasaragod since 20.03.1988 and as such he was a Public Servant coming under Section 2(C) of the Prevention of Corruption Act and that he was in charge of the day to day affairs of the Security Staff and that PW.1 was the proprietor of Cannanore Industrial Security Unit, which had provided security guards under Ext.P7 agreement dated 16.08.2000 to CPCRI. CRL.A.No. 80 of 2004 2 Initially the contract was for a period of three months. Periodically it was extended from time to time for which separate agreements were executed. As per Ext.P6, the last agreement dated 01.01.2002, the contract would expire by 31.03.2002. On 18.01.2002, the appellant called PW.1 over phone and demanded a sum of Rs.2,000/- as bribe for further extension of the period of contract. PW.1 was aggreived by the demand. The matter was reported to CBI Office at Cochin. The Superintendent of Police, who attended the complaint by PW.1, authorised PW.9, an Inspector to receive the complaint from PW.1 and to take appropriate action. Accordingly PW.9 proceeded to Kannur, and lodged in the guest house. Getting information, PW.1 met PW.9 at 7.40 a.m on 19.01.2002. PW.1 gave Ext.P1 written complaint. PW.9 took a copy and Ext.P1 was sent to the Office for registering the crime. PW.1 was asked to meet PW.9 in room No.207, Enay Toursit Home, Kasaragod. PW.9 made arrangements for laying the trap. He summoned two officers of the Syndicate Bank of which one was examined as PW.5, PW.9 then proceeded to Kasaragod. By about noon, PW.1 reached there. He produced Rs **.** 2000/-, the bribe money demanded by the appellant. PW.9 got the same from PW.1 and smeared Phenolphthalein powder over it. Phenolphthalein test was demonstrated and the currency CRL.A.No. 80 of 2004 3 notes, which were marked as MO6 series, were handed over back to PW.1 with instruction to give to the appellant only on demand. PW.9 prepared Ext.P2 mahazar detailing the identity of M.O.6 series . At the time of demonstration of Phenolphthalein Test, complaint of PW.1was appraised to PW.5 and the other witness who was cited as CW3. PW.5 was instructed to shadow PW.1 and to witness the transactions. PW.1 and PW.5 proceeded to the office of the appellant. They entered the room of the appellant. PW.9 and party along with CW.3 separately proceeded to the Office of the appellant and took positions in and around. Inside the room of the appellant a computer operator was sitting. No sooner PW.1 and 5 entered the room, than the computer operator was asked to go out. PW.1 and 5 were provided seat in the room of the appellant. PW.5 was introduced to the appellant as new supervisor. During the course of conversation the appellant repeated the demand following which PW.1 handed over M.O.6 series to the appellant. Appellant accepted the same with his right hand, counted and kept inside the right side draw of the table. PW.1 and 5 came out of the office and conveyed signal to PW.9 responding to which PW.9 rushed to the room of the appellant. As asked by PW9, PW1, 5 and CW.3 followed him. PW.9 disclosed his identity and introduced PW.5 and CW.3 to the 4 CRL.A.No. 80 of 2004 appellant. Though PW.9 repeatedly asked the appellant whether he had accepted any bribe from PW.1, he remained silent. Sodium carbonate solution was prepared. The hands of the accused were dipped in the solution. Hands as well as solution turned pink. When further questioned the appellant opened the drawer of the table, took M.O.6 series from the drawer and placed over the table. As instructed by PW. 9, M.O.6 series were verified and ascertained its identity with reference to Ext.P2 Mahazar. M.O.6 series were kept inside the drawer over a photostat copy of a document. The said document was taken out, sweeped with a cotton swab and phenolphthalein test was conducted. Result was positive. The appellant was arrested and Ext.P3 recovery mahazar, wherein PW.1, 5 and CW.3 were attestors, was prepared. The appellant was later released on bail. PW.9 returned to the office, handed over documents and material objects. PW.10 took over the investigation. He completed the investigation and submitted the charge sheet before the Trial Court for the above stated offences. 3. Learned Judge took cognizance and issued process responding to which the appellant entered appearance. On his appearance, copy of the final report and connected documents were furnished. Both sides were CRL.A.No. 80 of 2004 5 heard. Finding that there are materials to send the appellant for trial for the abovesaid offences, a charge was framed. When read over and explained the appellant pleaded not guilty. Therefore he was sent for trial. During the course of trial, PWs. 1 to 10 were examined and Exts. P1 to P26 were marked. M.O.s 1 to 7were also marked. During cross examination of PW1, one document was marked as Ext D1. During cross examination of PW5, certain portions in the CD statement was marked as Ext.D2. During cross examination of PW7, Exts. D4 to D9 were marked. During cross examination of PW8, Ext.D10 and D11 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant admitted his official status, but he denied the incriminating evidence. He had further stated that the uncle of PW.1 who was examined as PW.2 was the supervisor of the security guards. PW.2 used to take loans from the appellant. The amount that the appellant received from PW.1 was the refund of loan amount so due to the appellant from PW.2. A Junior Technical Assistant employed in CPCRI was examined as DW.1. An industrialist, who claimed to be a relative of PW.1 and stated to be a supplier of certain cleaning products in CPCRI was examined as DW.2. They were examined CRL.A.No. 80 of 2004 6 by the appellant to depose that the appellant used to lend money to PW.2 and that the appellant had filed a complaint before the Police against PW.1 and being motivated PW.1 trapped the appellant. Learned Special Judge, on appraisal of the evidence arrived at a conclusion of guilt, consequent to which the appellant was convicted and sentenced as above. 4. The fact that the appellant was working as a Farm Superintendent in CPCRI and in that capacity he was a public servant coming under section 2(C) of the PC Act was not at all disputed. PW.1 had given evidence that the appellant was working as Farm Superintendent. PW.3, the Technical Assistant and PW.7, the Head of the crop division would also depose that the appellant was working as Farm Superintendent. Supporting to the above unchallenged evidence, DW.s 1 and 2 had also given evidence that the appellant was working as Farm Superintendent in CPCRI. Therefore regarding the office held by the appellant the prosecution evidence is corroborated by defence evidence. PW.6, the Director, CPCRI would depose that after verifying the records of investigation and connected documents he issued Ext. P15 order according sanction to prosecute the appellant. Competency of PW.6, to accord sanction to prosecute the appellant and the legality of Ext.P15 was not at all assailed in the appeal. 7 CRL.A.No. 80 of 2004 Therefore concurring with the Trial Court, I find that the appellant was working as Farm Superintendent in CPCRI . In that capacity he was a public servant coming under section 2(c) of the PC Act and he was prosecuted with due sanction. 5. In support of the allegation regarding demand for bribe, the prosecution would rely upon the evidence of PW.s 1 and 5. As regards the recovery of M.O.6 series, the evidence of PW.1, 5 and 9 coupled with Ext.P2 and P3 Mahazars are relied. The above evidence support the prosecution. The learned counsel for the appellant submitted that the acceptance of M.O.6 series and the recovery of the same by PW.9 for which Ext.P3 mahazar was prepared is not at all disputed. That submission is recorded. According to the learned counsel, PW.2 who was the uncle of PW.1 was the supervisor of the security guards deployed by PW1 in CPCRI. PW.1 was staying at Kannur. PW.2 had availed loans from the appellant. On 18.01.2002, PW.1 telephoned the appellant and informed that the PW.2 was being substituted. Then the appellant stated that in case PW.2 was substituted, appellant might be paid the money that PW.2 had borrowed. It is responding to that request, PW.1 went to the office and the amount of loan taken by PW.2 was paid back. Therefore, the only question now CRL.A.No. 80 of 2004 8 before me is as to whether M.O.6 series was given as bribe or for discharge of loan. Such a defence is seen put to PWs. 1 and 2 during cross examination. Both of them had denied of availing any loan by PW2 from the appellant. The suggestion that M.O.6 series were given by PW.1 in return of the amount borrowed by PW.2 was also denied. DW.1 was examined to depose that he was aware that there was loan transactions between PW.2 and the appellant and that about one month back as on the date of trap, the appellant had entrusted Rs.500/- to DW.1 stating that the appellant had been going to town and that PW2 had requested for a loan of Rs.500/- and PW2 might come up and in the event PW.2 turned up, the same should be given to PW.2. But, admittedly PW.2 did not go or take the money. So, money was returned to the appellant. DW.1 has no whishper that at any time he had witnessed any money transaction between the appellant and PW2. 6.DW.2 would depose that he is a relative of PW.1and that PW1 introduced the appellant to DW2 and that thereafter he had been getting some orders from the CPCRI for supplying cleaning materials and later it was known that the appellant was trapped by the CBI. DW2 used to meet CRL.A.No. 80 of 2004 9 PW1 at Ananda Asramam in Neeleswaram and in December 2001, when DW2 met PW1 , PW1 stated that the appellant had become a nuisance and that a complaint was filed before police against him and it had become a black mark and therefore the appellant was trapped. 7. Relying upon the decision reported in SubramaniamVs.State of Tamil Nadu [(2006)1SCC 401] the learned counsel for the appellant submitted that in a prosecution for offence under Section 7 and 13(2) read with section 13(1)(d) of the PC Act acceptance of gratification by the accused in the absence of proof of demand of illegal gratification, would not amount an offence under Section 7 or 13(2) r/w 13(1)(d) and that the prosecution must prove that there was demand for illegal gratification. It was further submitted that the burden of proof on the accused to rebut the presumption under section 20 is not so onerous as that of the prosecution to establish the case beyond the shadow of doubt and that the accused need establish only a probable case. On the other hand relying upon the decisions reported in Krishna Ram Vs. State of Rajastan(2010)SCC(Crl)147, Narasinga Rao Vs. State of A.P(2011 SCC(Crl)258), T.Shankar Prasad Vs. State of AP (2004 SCC(Crl) 870), Kommaraju Gopalakrishnamurthy Vs. State A.P (2001 SCC (Cr)1481) Krishnapilla v. State of Kerala (1989 (1) CRL.A.No. 80 of 2004 10 Crl. 700) and State of U.P v. G.K.Ghosh, (AIR 1984 SC 1453), the learned standing counsel for the respondent submitted that once it is either established by the prosecution or admitted by the accused that he had accepted any gratification from the de facto complainant, it is his burden to establish that it was accepted not as an illegal gratification but as a legal remuneration. According to the learned standing counsel when accused fails to establish that the money received was legal remuneration, the prosecution case is to be believed. The learned counsel also submitted that the evidence of DW.s.1 and 2 is not at all convincing and it is not even sufficient enough to come to a conclusion that the defence advanced is even probable. The learned counsel for the appellant also argued that the appellant was not the person authorised to extend the contractual period and that he was only a member of the Farm Advisory Committee which is the authorised body to extend the term and that the appellant can no way extend the contract or that he can no way cause any objection in extending the term of contract. Therefore, according to the learned counsel, the demand for illegal gratification for extending the contract and acceptance of the same as a motive or reward for discharging of official duties is not at all believable and that the money that the appellant accepted from PW.1 CRL.A.No. 80 of 2004 11 was the amount due from PW.2 who had taken loan from the appellant. 8. To PWs.1 and 2, as stated earlier loan transactions was suggested and they had denied. The very consistent case of PW.1 is that on 18.1.2002 the appellant telephoned to him and demanded Rs.2,000/- as illegal gratification for extending the term of the contract and MO.6 series was given only when demand was repeated on the next day. The evidence of PW.1 would show that he had withstood the cross examination. The evidence of PW.5 would show that when PW.1 stated that he had brought the amount mentioned on the previous day the appellant stretched the hand. Thereupon, MO6 series was given. It was accepted and counted to check the amount and kept inside the drawer of the table. The defence statement itself would suggest that there was telephone conversation on the previous day in between the appellant and PW.1. It would also show that MO.6 series was given to the appellant and accepted by the appellant as if the amount mentioned on the previous day. Though, DW.1, a Subordinate Officer under the appellant had stated that he was aware of the loan transaction between PW.2 and the appellant, he had to admit that he has no direct knowledge. The evidence of DW.1 that one month back, while the appellant going to town entrusted Rs.500/- to DW.1 to give it to PW.2 on CRL.A.No. 80 of 2004 12 his arrival stating that PW.2 had requested for a loan didn't instil confidence. So also, the evidence of DW.2 that PW.1 had voluntarily stated to DW.2 that he had falsely implicated the appellant didn't instil confidence. Alleged false implication is in pursuance to a police complaint filed by the appellant. There is no bit of evidence to come to a conclusion that there was any such police complaint. The evidence of DW2 appears very artificial. Appellant has no such case. What else disclosed is that there was petty theft in the farm despite the deployment of security guard; and regarding the theft the appellant had initiated action as evidenced by Exts.D7, 9 and 11, for recovery of loss from the amount payable to PW.1. Such recovery was initiated in terms of the agreement between PW.1 and CPCRI. There is no material brought out to show that in fact that recovery is against PW.1. On the other hand, PW.1 is entitled to realise that amount from the security guards deputed for the duty as the theft occurred because of the lack of vigilance of the guards. It is also pertinent to note that there is no suggestion to PW.1 that because of such deduction PW.1 was any way ill motivated against the appellant. There is also no suggestion to PW.1 that PW.1 had in fact sustained any loss or that PW.1 had at any time made any complaint against any such recovery or action; or any request was CRL.A.No. 80 of 2004 13 made by PW1 to the appellants to avoid such recovery. There is nothing to conclude that for such action PW.1 was any way aggrieved or ill motivated. In the above circumstance, the defence version that PW.1 was on bitter terms and the appellant was falsely implicated does not appear to be probable. On the other hand the evidence of PW.1 would show that on 18.1.02 of the appellant, over phone, demanded bribe for extension of the contract. The evidence of PW.1 on that aspect remains unimpeached, though PW.1 was subjected to a lengthy and searching cross examination. The evidence of PWs. 1 and 5 would show that on 19.01.2002 also, the appellant repeated the demand for bribe. It was in pursuance to that demand M.O.6 series was given to the appellant. The appellant, before safely keeping it, counted the same to check whether the demanded amount was given. Though the appellant has got a case that PW2 had borrowed money, nothing is stated as to when and how much amount was borrowed by how many occasion. There is no case that PW.1 had at any time asked the appellant to lend money to PW.2 or that in the event of default, PW.1 would reimburse. There is also no case that there was any demand to PW.2 to discharge the liability which PW.2 did not heed. The circumstance compelling to discharge PW.1 would arise only when PW.2 failed to CRL.A.No. 80 of 2004 14 discharge. Since there was no demand for discharge of liability, it goes without saying that there was no failure to discharge and consequent compelling the appellant to demand discharge by PW.1. When all these circumstances are taken into account, the story of lending money by the appellant to PW.2 and discharge of the same by PW.1 appear to be a cock and bull story. Though the appellant has got a case that he had got nothing to do with the extension of the contract, on going through the prosecution evidence, the defence does not appear to be true. Admittedly, the appellant was the convenor of the Farm Advisory Committee which was empowered to extend the contract. It is pertinent to note that no long term contract was given. A short term contract was given initially and it was renewed every often, despite the fact that the service rendered by PW.1 was good except some reported petty theft. Awarding contract for short-term and extending the same periodically leave room for doubt about the certainty of the contract. Thereby the contractor was literally forced to grease the palms of those who were at the helm of affairs. It is stated that 26 security guards were deployed in pursuance to the contract. If the contract is not renewed, those persons would become jobless from 31.03.2002. Therefore PW.1 was in a weak position, and exploiting this circumstance the appellant demanded CRL.A.No. 80 of 2004 15 illegal gratification. Though it is alleged by the appellant that the extension of the contract was within the powers of the Farm Advisory Committee, it is not known whether that fact was within the knowledge of PW.1. Since the appellant was the convenor of the Farm Advisory Committee and was in charge of the security, the appellant alone was dealing with PW.1 regarding the security contract. Therefore, it could not be said that PW.1 was aware that appellant was not in a position to extend the contract or that even if the appellant objected to the extension of the contract, PW.1 could manage it. It is also pertinent to note that the committee resolved to extend the contract after taking note of the report of the appellant that the service was satisfactory. Therefore the appellant had the ultimate say in the matter. The facts and circumstances being the above, the appellant ruthlessly attempted to exploit the situation. There is nothing on record to come to a conclusion that either PW.10 or PW.9 was in any way susceptible to PW.1, to cook up a case. So also, there is nothing to suggest that PW.5 was influenced by PW.1 or PW.9 in any way. A careful reading of the evidence of PW.5 would show that he is totally an independent respectable witness whose credibility is not assailed. The evidence of PW.1 and 5 would show that before M.O6. series was given to the appellant there was some casual talk. CRL.A.No. 80 of 2004 16 Nothing was revealed to show that appellant had talked about any loan transaction with PW.2. If there was any real loan transaction between them, in the normal course, that would have come out during their conversation. Also, nothing was suggested to PW5 that during the conversation the appellant had mentioned about the loan transaction and it is in pursuance to that transaction M.O.6 series was given to the appellant. Such being the evidence on record, I am persuaded to reject the defence version. The appellant failed to rebut the presumption under Section 20 of the PC Act. I find no reason to disbelieve the demand and acceptance of illegal gratification by the appellant. The evidence on record would show that such demand was made as a motive or reward for extension of the contract. MO6 series is not at all a legal remuneration. 9. On anxious consideration of the arguments advanced on either side and the evidence on record I fail to find anything to come to a conclusion that the special judge had gone, wrong in appreciating the evidence. The appellant who had admitted acceptance of M.O.6 series from PW1 failed to bring out a probable case that M.O.6 was accepted as a lawful remuneration. Therefore, the trial court was correct in arriving at a conclusion of guilt. I find no reason to interfere with the conviction. The CRL.A.No. 80 of 2004 17 sentence awarded is only the minimum prescribed by the statute. There is no reason to interfere with the sentence also. In the result the appeal fails, accordingly, it is dismissed. **P.S.GOPINATHAN, JUDGE** kkj