Surjith K. Soman v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ``` CRL.A NO. 613 OF 2017 ``` ``` CRIME NO.4/2010 OF VACB, KASARAGOD AGAINST THE JUDGMENT IN CC 120/2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY ``` ## **`APPELLANT/ACCUSED:`** ``` SURJITH K.SOMAN S/O. K.R. SOMAN,KALLANIKKAL HOUSE, RAJAKKAT VILLAGE, N.R CITY POST,UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. P.VIJAYA BHANU (SR.)(K/421/1984) SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV SRI.T.R.HARIKUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, KOCHI - 682 031. ``` ## **`OTHER PRESENT:`** ``` RAJESH A SPL GP VIG;REKHA SR PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** **K. BABU, J ------------------------------------------------Crl Appeal. No.613 of 2017 ------------------------------------------------Dated this the 20[th] day of December, 2023** ## **JUDGMENT** This appeal is directed against the judgment dated 30.06.2017 in C.C.No.120 of 2016 passed by the Enquiry Commissioner and Special Judge, Thalassery. By the impugned judgment, the Trial Court convicted the accused under Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short the Act). ## Prosecution case 2. The accused was working as Health Inspector Grade-II at Municipal Office Kasaragod. He was holding the charge of Registrar of Births and Deaths. PW1 approached the accused for incorporating corrections in the initials of his daughter in the Birth Certificate and for Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** issuing a fresh Birth Certificate. The petitioner accepted an illegal gratification of Rs.100/- from PW1 on 25.05.2010. Thereafter, he demanded Rs.1,000/-more as gratification from him. However, he insisted for giving atleast a sum of Rs.800/- as bribe. PW1 approached the VACB, Kasaragod unit and filed a complaint alleging that the accused demanded bribe for effecting corrections in the Birth Certificate of his daughter. Based on Ext.P3 complaint filed by PW1, Ext.P3(a) FIR was registered. The VACB laid a trap. On 31.05.2010 at 12.15 hours, the accused accepted a sum of Rs.800/- as illegal gratification from PW1 at the Verandah of the Municipal Library building bearing No.XII/142 of Kasaragod Municipality. 3. The prosecution examined PWs 1 to 13 and proved Exts.P1 to P28 and MOs 1 to 4. Exts.D1, D1(a) and D2 Case Diary Contradictions were marked on the side of the defence. Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** 4. The prosecution examined PWs 1 to 3 and 8 to establish demand and acceptance. 5. PW1 is the defacto complainant. He filed Ext.P3 complaint before the Dy.S.P, VACB, Kasaragod Unit-PW8. ## Defence case 6. PW1 approached the accused and submitted Ext.P2 application seeking correction in the Birth Certificate of his daughter. There were some defects in Ext.P2 application. The application could not be processed as the de facto complainant did not rectify the defects in Ext.P2 application. Therefore, a delay occurred in the processing of the application. PW1 therefore erroneously formed an opinion that the accused actually wanted bribe from him and that might be the reason for delay in processing the application. On a wrong understanding of the facts, the complainant, PW1 Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** approached the Vigilance and submitted Ext.P3 complaint. ## - Submissions: 7. The learned counsel for the appellant/accused submitted that there is no legal evidence to establish demand and acceptance as pleaded by the prosecution. The learned counsel submitted that the defence version is more probable than the prosecution version. The learned counsel submitted that PW1 is not a wholly reliable witness. It is further submitted that there is no positive independent evidence to establish the demand of bribe. 8. The learned Special Public Prosecutor per contra contended that the evidence tendered by PW1 in support of the prosecution case corroborated by Ext.P3 FIS and the oral evidence of PWs 2,3 and 8 would lead to the factual inference that the accused demanded bribe Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** from PW1. The learned Special Government Pleader submitted that the evidence of PW1 and the other witnesses examined to prove the trap proceedings establishes the acceptance. 9. PW1 stated that he approached the accused for effecting corrections in the Birth Certificate of his daughter. He submitted Ext.P2 application before the accused. In Ext.P3, PW1 had stated that the accused demanded money as bribe for processing the application. However, while giving evidence, PW1 denied having given such a statement to the Vigilance. He stated that on three or four occasions, he had to go to the Municipal Office and approached the accused and he further stated that one of his friends told him that the delay caused in processing the application would be for obtaining bribe from you. PW1 repeatedly requested the accused to process the application. He specifically stated that when the accused delayed the processing of the application he Crl Appeal. No.613 of 2017 **==> picture [20 x 9] intentionally omitted <==** was compelled to file application before the Vigilance. PW1 has not given evidence to the effect that the accused anytime demanded money. He categorically stated in the cross-examination that the accused never demanded bribe from him. 10. PW2, a Revenue Recovery Tahsildar who had accompanied the Trap laying Officer gave evidence that the accused accepted money from PW1 on the relevant date. PW3, another witness to the seizure, also supported the version of PW2. PW8, the Trap laying officer, gave evidence in tune with prosecution case. The prosecution examined PW1 to establish demand. There is absolutely no evidence on the part of PW1 to support the case of the prosecution that the accused demanded bribe. The learned Special Public Prosecutor submitted that the statement of PW1 in Ext.P3 complaint corroborated by the oral evidence of PW2 and PW8 is sufficient to establish demand. The facts stated in Ext.P3 FIS cannot ..8.. Crl Appeal. No.613 of 2017 be treated as proved by mere production or marking of it **.** The FIS is not considered as a substantive piece of evidence but can only be used to corroborate or contradict informant’s evidence in the Court. As the informant, PW1, did not support the versions in Ext.P3 FIS, there is no legal evidence to establish demand. The learned Public Prosecutor relied on _**Neeraj Dutta v. State (Govt. of N.C.T. of Delhi)**_ [2022 LiveLaw(SC) 1029] to contend that in the event the complainant turns hostile, the demand of illegal gratification can be proved by way of circumstantial evidence. In _**Neeraj Dutta**_ (Supra), the Apex Court came to the following conclusions:- “(a) Proof of demand and acceptance of illegal gratifcation by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d) (i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to frst prove the demand of illegal gratifcation and the subsequent acceptance as a matter of ..9.. Crl Appeal. No.613 of 2017 fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: - (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. - (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1) (d)(i) and (ii) of the Act. - (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1) Crl Appeal. No.613 of 2017 ..10.. (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratifcation may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratifcation can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the Crl Appeal. No.613 of 2017 **==> picture [26 x 9] intentionally omitted <==** purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1)(d)(i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 11. For drawing an inference of presumption of fact with regard to demand, there shall be foundational facts proved by relevant oral and documentary evidence and other circumstances. While analysing the evidence of PWs 1 and 8 and the other witnesses examined by the prosecution in support of his case, it is to be held that the prosecution has not succeeded in establishing the foundational facts to draw a presumption with regard to demand. The necessary conlcusion is that the prosecution failed to establish the demand as required. 12. The proof of demand of illegal gratification is the gravamen of the offences under Sections 7 and 13(1)(d)(i) Crl Appeal. No.613 of 2017 **==> picture [26 x 9] intentionally omitted <==** 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 A.P**_ [(2015) 10 SCC 152], _**K.Shanthamma v. The State of Telangana**_ [(2022) 4 SCC 574], _**B.Jayaraj v. State of Andhra Pradesh**_ [(2014) 13 SCC 55], _**Rajesh Gupta v. State through Central Bureau of Investigation**_ (2022 SCC OnLine SC 1107) and _**Neeraj Dutta v. State (Govt of N.C.T of Delhi)**_ [2022 LiveLaw (SC) 1029]}. Crl Appeal. No.613 of 2017 **==> picture [26 x 9] intentionally omitted <==** 13. In _**N. Vijayakumar v. State of Tamil Nadu**_ [(2021) 3 SCC 687], a three Bench Judge of the Apex Court held that in the absence of evidence regarding demand, mere recovery of money is not sufficient to attract offence under Section 7 of the PC Act. 14. In the instant case, the prosecution has not succeeded in proving the demand beyond reasonable doubt, The appellant/accused is therefore entitled to the benefit of doubt. He is found not guilty of the offences alleged. He is acquitted of the offences. 15. He is set at liberty. The Crl. Appeal is disposed of as above. Sd/- **K.BABU, JUDGE** kkj