State of Kerala v. C.M. Madhusoodhanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** **CRL.A NO. 763 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CC 107/2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY** ## **APPELLANT/COMPLAINANT:** STATE OF KERALA REP BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI.RAJESH.A, SPECIAL GOVERNMENT PLEADER (VIGILANCE) ## **RESPONDENT/ACCUSED:** C.M.MADHUSOODHANAN, S/O SUBRAHMANNIAN, ANASWARA, KAITHAPRAM, PARIYARAM (FORMERLY ASSISTANT ENGINEER, PARIYARAM GRAMA PACHAYATH), PIN-670 502. BY ADV SRI.DEVAPRASANTH.P.J. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.763 of 2022 **2** K.BABU, J. -------------------------------------Criminal Appeal No.763 of 2022 -------------------------------------Dated this the 18[th] day of July, 2022 ## JUDGMENT The challenge in this appeal filed by the State is to the judgment dated 22.10.2016 passed by the Enquiry Commissioner and Special Judge, Thalassery, in C.C.No.107 of 2016. By the impugned judgment, the sole accused, the respondent herein, was acquitted by the Court below of the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. 2. The accused was an Assistant Engineer of Pariyaram Grama Panchayath. The defacto complainant (PW1) was a Contractor entrusted with the work of the construction of an Anganvadi building at Fourteen acre in Kannur District. 3. The prosecution case is that PW1, after accepting the tender, completed the work on 30.05.2009 but was given a cheque for Rs.2,60,010/- only on 30.06.2009. PW1 approached the accused on 07.07.2009 seeking to issue a payment certificate regarding the Crl.A.No.763 of 2022 **3** amount deducted as income tax. The accused demanded Rs.2,000/as bribe for issuing the certificate. On 09.07.2009, PW1 contacted the accused over phone, and then the accused told him that if he gave the application along with the money demanded on 10.07.2009, the required certificate would be issued. PW1 approached the Dy.S.P, VACB, Kannur and lodged Ext.P1 FIS. The Dy.S.P, VACB (PW8) arranged a trap. PW1 went to the office of the accused on 10.07.2009 and handed over the sum of Rs.2,000/- along with the application for the issuance of “payment certificate”. The accused received the application and the money. The trap laying team recovered the money along with the application from the drawer of the table used by the accused at his office. 4. The crux of the prosecution case is that the accused demanded Rs.2,000/- as illegal gratification on 07.07.2009 and thereafter, on 09.07.2009, demanded the amount over phone for the purpose of issuing the certificate required by PW1 to be submitted before the Income Tax authorities. As per the prosecution case, PW1 submitted Ext.P1 FIS before the Trap Laying Officer (PW8). On Crl.A.No.763 of 2022 **4** 10.07.2009, he went to the office of PW8 and a crime was registered. PW1 handed over MO1 currency notes (Rs.2,000/-) to PW8 and they were entrusted to PW1 after smearing phenolphthalein powder. To evidence these proceedings, Exhibit P2 seizure mahazar was prepared. PW8 and the trap laying team proceeded to the office of the Pariyaram Grama Panchayath, where the accused was employed. The team reached the premises by around 12 noon. PW1, as instructed by the Trap Laying Officer, went to the office of the accused at 12.30 p.m. He met the accused and handed over Ext.P3 application along with MO1 series currency notes. The accused received the same and placed them in the drawer of the table. The trap laying team led by PW8 rushed to the place of occurrence and recovered Ext.P3 application and MO1 series currency notes from the table used by the accused. Thereafter, phenolphthalein test was conducted by dipping the right hand of the accused, which turned positive. Phenolphthalein test was conducted in respect of Ext.P3 application, which also, according to the prosecution, turned positive. The accused was arrested. PW11 followed by the Crl.A.No.763 of 2022 **5** investigation conducted by PWs 10, 13 and 14, submitted final report against the accused alleging offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. 5. On the appearance of the accused, the Trial Court framed charges against him. He pleaded not guilty to the charges, and therefore, came to be tried by the Trial Court for the aforesaid offences. 6. The prosecution examined PWs 1 to 14 and proved Exts.P1 to P18 and MOs 1 to 6. 7. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. On the side of the defence, DW1 was examined and Exts.D1 to D8 were marked. The Trial Court, after hearing the arguments addressed on both sides, found the accused not guilty of the offences alleged and he was acquitted. 8. Heard Sri.A. Rajesh, the learned Special Government Pleader (Vigilance) appearing for the State and Sri.P.J. Crl.A.No.763 of 2022 **6** Devaprasanth, the learned counsel appearing for the respondent/accused. 9. The learned Special Government Pleader submitted that the oral evidence of PWs 1 to 8 corroborated by Ext.P1 F.I.S and MO1 series is sufficient to establish the case against the accused. 10. The learned Special Government Pleader submitted that the prosecution established the circumstances from which the conclusion of the guilt of the accused could be drawn. 11. The learned counsel for the respondent/accused, per contra, contended that the prosecution failed to establish the charges against the accused beyond reasonable doubt and hence the judgment of acquittal requires no interference. 12. The foundation of the prosecution case is that the accused on 07.07.2009 and 09.07.2009 demanded Rs.2,000/- from PW1 as bribe or illegal gratification for the issuance of “payment certificate” to be submitted before the Income Tax authorities. The accused is a Contractor by profession. He was awarded the work of the construction of an Anganvadi building in Pariyaram Grama Crl.A.No.763 of 2022 **7** Panchayat, where the accused was employed as Assistant Engineer. 13. The prosecution mainly relied on the oral evidence of PWs 1, 2, 4, 5, 6 and 8 to establish the demand and acceptance. In order to establish the offences alleged, the prosecution has to prove the demand of bribe or illegal gratification and voluntary acceptance of the same by the accused. To establish the demand, the prosecution relies on the oral evidence of PW1 corroborated by Ext.P1 FIS. PW1 gave evidence that the accused demanded Rs.2,000/- from him on 07.07.2009 and 09.07.2009 for issuing the payment certificate as mentioned above. PW1 would say that the accused had the habit of demanding 4% of the estimated amount before the commencement of the work and when he failed to give the amount, the accused showed a hostile attitude towards him in the processing of files relating to the work. According to PW1, due to the hostile attitude, no part payment bill was passed by the accused. He further added that the accused made illegal deductions from the amount payable to PW1. He also proceeded to deduct the amount by way of a fine Crl.A.No.763 of 2022 **8** for the delay in the construction of the building. The prosecution relied on the statement of the accused in Ext.P1 FIS in support of the evidence of PW1. 14. The Trial Court, after appreciating the evidence, relied on the following circumstances in concluding that the version of PW1 is not credible: - Though PW1 had a case that the accused had the habit of demanding bribe at the commencement of the work, he had no case that at the time of passing of bills any demand was made by the accused in respect of any of the works done by him. - (iii) In the case of the work in question also for passing the bills of part payment or the final bills the accused had not made any demand as contended by PW1. 15. PW1 had not requested for passing any part payment bills, as revealed from the oral evidence of PW7. As per Ext.P4(e), the Crl.A.No.763 of 2022 **9** work ought to have been completed on 19.03.2008 and as per Clause (7) of the agreement, fine has to be imposed if any delay is caused. Admittedly, PW1 had not completed the work on or before 19.03.2008 and he had sought for extension of time and the work could be completed only on 30.05.2009, which was the reason for imposition of fine. It was the statutory duty of the accused to impose fine for the delayed period. The oral evidence of PW7 would show that as PW1 failed to complete the work as agreed, the amount was to be deducted for work not executed, and therefore, the case of PW1 that the accused had made illegal deductions from the amount payable to him is not acceptable. 16. PW7, the Assistant Executive Engineer further gave evidence that the accused could prepare the bill only when the file was cleared from his office and there was no delay in preparing the bill by the accused in respect of the work executed by PW1. Relying on the above circumstances, the Trial Court held that PW1 had developed an ill feeling towards the accused. 17. I have carefully gone through the oral evidence of PW1, **10** Crl.A.No.763 of 2022 PW7 and Exts.P4 series. I find no reason to interfere with the finding of the Trial Court to the effect that, due to the non-execution of work and the consequent imposition of fine for the delay in the completion of the work, he had developed ill feeling against the accused. 18. The foundation of the prosecution case is that for the purpose of submitting a payment certificate to the Income Tax authorities PW1 wanted a payment certificate from the local authority. The oral evidence of PW5, the Income Tax Officer, would show that PW1 wanted the certificate only after March 2010 and there was no immediate necessity for him to obtain the certificate in July, 2009. Moreover, Ext.D8, the copy of the certificate of deduction of tax issued to PW1, would show that the tax amount was remitted to the Income Tax Department by him only on 13.07.2009. Without remitting tax to the Income Tax Department, it was impossible for the accused to issue a 'payment certificate' as required by PW1. So, there was no question of issuance of payment certificate as projected by PW1 on 10.07.2009. Therefore, the Crl.A.No.763 of 2022 **11** demand as pleaded by PW1 is not probable. 19. According to PW1, the accused had demanded money on 07.07.2009 and 09.07.2009. PW1 added that on 09.07.2009, he was required to come to the office of the accused along with the application for getting payment certificate to be submitted to the Income Tax authorities. Consequently, he went to the office as demanded and required by the accused for submission of the application along with the money demanded by him. The version of PW1, which is the solitary evidence to prove the demand, is not probable and reliable. 20. There is no other evidence to corroborate the version of PW1 regarding the alleged demand of bribe made by the accused on 07.07.2009 and 09.07.2009. 21. The defence pleaded by the accused is highly relevant in these circumstances. According to the accused, he had never demanded any money as bribe from PW1. The inaugural function of the opening of the Anganvadi building was done on 31.05.2009. Part of the fund for meeting the expenses of the inaugural function was Crl.A.No.763 of 2022 **12** decided to be collected from the Contractor as well as from the public and the Contractor was required by PW4, the Secretary of the Grama Panchayath, to donate a sum of Rs.2,000/- and on the relevant day, PW1, along with the application for getting payment certificate, approached PW4, the Secretary of the Grama Panchayath. The accused had already paid Rs.2,000/-, which was to be paid by PW1 in connection with the inaugural function, to the Secretary of the Grama Panchayath. Therefore, on the day on which the trap was laid, when PW1 approached PW4, PW1 was instructed to pay Rs.2,000/- that was already paid by the accused to him, and a slip to that effect was also attached to the application submitted by PW1. According to the accused, when PW1 came to his office on the relevant day, believing that it was the amount he had already paid and the payment was made as per the instruction of the Secretary, he received the same and placed the application and the money in the drawer of the table. 22. In order to substantiate the defence version, DW1, an Overseer working in the Pariyaram Grama Panchayat, was Crl.A.No.763 of 2022 **13** examined. DW1 stated that the accused had given Rs.2,000/- to the Secretary as a loan for meeting the inaugural expenses and the Secretary told the accused that the amount would be repaid after collecting the same from PW1. DW1 was in the office where the accused was employed when the trap was laid. He was in the room where the accused was sitting at the relevant time when PW1 came there and handed over the application for getting the payment certificate along with the money. 23. PW4, the Secretary of the Grama Panchayath also supported the version of the accused. He gave evidence that the accused had given Rs.2,000/- to him as a loan for meeting the inaugural function of the Anganvadi building. PW4 would state that on 09.07.2009, PW1 had approached him and told that he was prepared to pay Rs.2,000/- and as the accused was not in the office on that day, the amount could not be paid. According to PW4, he had given a slip to PW1 to hand it over to the accused along with the money. 24. PW7, the Assistant Executive Engineer, gave evidence Crl.A.No.763 of 2022 **14** that in the usual course, the excess amount to meet the inaugural expenses were collected from the public and the contractors. Therefore, the version of the accused gets strengthened with the oral evidence of PW1, PW4 and PW7. In order to prove the recovery of MO1 series currency notes the prosecution relied on the oral evidence of PWs 1, 2, 8, Ext.P5 recovery mahazar and MO1 series currency notes. The accused has no case that he had not received the application for payment certificate submitted by PW1 and the sum of Rs.2,000/- on the relevant date. He admitted that he had received MO1 currency notes from PW1 on the bona fide belief that it was the amount due to him and handed over to him at the instruction of PW4, the Secretary of the Grama Panchayath. 25. It has come out in evidence that the application for payment certificate submitted by PW1 was tagged with a slip by PW4, the Secretary of the Grama Panchayath. Exhibit P5 is the recovery mahazar evidencing the seizure of MO1 currency notes and the application submitted by PW1 for getting the payment certificate. The definite case of the accused is that Ext.P3, the Crl.A.No.763 of 2022 **15** application allegedly submitted by PW1, is not the one originally handed over to him when the trap was laid. PW8, the Trap Laying Officer and PW2, the independent witness, who accompanied PW8, gave categoric evidence that the application submitted by PW1 at the time of the trap was subjected to phenolphthalein test and the test turned positive. As per Ext.P5 recovery mahazar, along with MO1 currency notes, the application stated to have been submitted by PW1 was also seized. 26. It is highly relevant to note that Ext.P3 application form allegedly submitted by PW1, which was recovered at the time of trap, was produced before the Court after 7 years at the time of trial. The marking of Ext.P3 was vehemently objected by the defence on the ground of delay. The explanation offered by the Trap Laying Officer (PW8) was that Ext.P3 happened to be in another file and he missed to produce the same along with the properties produced before the Court. PW14, the Investigating Officer, has given evidence that the articles recovered as per the recovery mahazar were produced in the Court on 13.07.2009. PW14 further Crl.A.No.763 of 2022 **16** stated that all the original documents relating to the case were kept intact by him in the case diary alone and he had not transferred any original documents to any other file. PW11, the officer who laid the charge, also gave evidence that the entire documents relating to the case were in the case file only. The inordinate delay of seven years in the production of Ext.P3, that too at the time of trial, has not been satisfactorily explained by the prosecution. It was the bounden duty of the Trap Laying Officer to see that the most vital document to establish the seizure should have been produced before the Court without any delay. Nonproduction of Ext.P3 application along with the original documents submitted on 13.07.2009 makes the genuineness of Ext.P3 doubtful. Defence specifically challenged the genuineness of the initials and handwriting of the accused on Ext.P3. 27. The prosecution also failed to confront Ext.P3 to PW4 and PW7, who are familiar with the handwriting and signature of the accused. The resultant conclusion is that the prosecution failed to establish the acceptance of MO1 currency notes by the accused as Crl.A.No.763 of 2022 **17** bribe money as alleged by the prosecution. 28. It is trite that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the Prevention of Corruption Act, 1988. 29. The proof of demand of illegal gratification is the gravamen of the offences under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder {Vide: P.Satyanarayana Murthy v. State of Andhra Pradesh [(2015) 10 SCC 152], K.Shanthamma v. The State of Telangana [(2022) 4 SCC 574], B.Jayaraj v. State of Andhra Crl.A.No.763 of 2022 **18** Pradesh [(2014) 13 SCC 55] and Rajesh Gupta v. State through Central Bureau of Investigation (MANU/SC/0527/2022)}. 30. The learned counsel for the accused further contended that the accused, having been acquitted by the Trial Court, is entitled to the presumption of innocence and further that the accused having secured his acquittal the presumption of his innocence is further re-affirmed and strengthened by the Trial Court. The learned counsel for the accused also submitted that if two reasonable conclusions are possible based on the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court. 31. The Apex Court in Chandrappa and others v. State of Karnataka [(2007) 4 SCC 415] following various authorities on the subject, deduced the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal, as follows: - “(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. - (2) The Code of Criminal Procedure, 1973 puts no limitation, Crl.A.No.763 of 2022 **19** restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. - (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. - (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. - (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court.” 32. In the instant case, the prosecution failed to prove the alleged demand and acceptance beyond reasonable doubt. The Trial Court held that the prosecution could not establish its case against the accused. This view cannot be held to be illegal, **20** Crl.A.No.763 of 2022 improper or contrary to law. Therefore, I am of the considered view that the view taken by the Trial Court for acquitting the accused was possible and plausible and no interference, therefore, is required. For the abovesaid reasons, the appeal lacks merits. Accordingly, it is dismissed. Sd/- K.BABU JUDGE KAS