T.C. Yohannan (deceased) and Rahelamma Yohannan v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 CRL.A NO. 1306 OF 2013** **JUDGMENT IN CC 80/2008 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** ## **APPELLANT/ACCUSED:** *1 T.C. YOHANNAN (DIED) S/O.UMMAN CHONA, KALLUMPURATH HOUSE, POST EZHUKONE, KOLLAM DIST, (RETD SUB ENGINEER, KSEB) *[DIED] *2 ADDL.APPELLANT RAHELAMMA YOHANNAN W/O LATE. T.C.YOHANNAN, KALLUMPURATH, BIJOSH BHAVAN, NEAR E.S.I.HOSPITAL, EZHUKONE P.O, EZHUKONE, KOLLAM-691505. *IS IMPLEADED AS ADDITIONAL APPELLANT AS PER ORDER DATED 24.06.2020 IN CRL.MA NO.1/2020. BY ADVS.K.A.SALIL NARAYANAN REKHA C.NAIR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,(VIGINALCE CRIME NO 6/02-MALAPPURAM) SRI.A.RAJESH.SPL PP VACB,SMT S.REKHA SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1306/2013 ## -:2:- ## **J U D G M E N T** Dated this the 24[th] day of May, 2023 This appeal has been preferred by the accused in C.C.No.80/2008 on the files of the Enquiry Commissioner and Special Judge, Thrissur (for short 'the court below') challenging the judgment dated 26.8.2013 convicting and sentencing him under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act'). 2. The accused was working as Sub Engineer at the Electrical Major Section, Puthanathani, Malappuram District. The case of the prosecution in short is that on 4.10.2002 and 10.10.2002, he obtained a total sum of ₹1,000/- as bribe from the defacto complainant/decoy at his office towards the consideration for giving electric connection. 3. After trial, the accused was found guilty. He was convicted and sentenced to undergo simple imprisonment for 1 year and to pay a fine of ₹1,000/-, in default to suffer rigorous imprisonment for 15 days for the offence punishable under Crl.A.No.1306/2013 ## -:3:- Section 7 of the PC Act and to undergo rigorous imprisonment for 2 years and to pay a fine of ₹1,000/-, in default to suffer rigorous imprisonment for another 15 days for the offence punishable under Section 13(1)(d) read with 13(2) of the PC Act vide the impugned judgment. Challenging the said conviction and sentence, the accused preferred this appeal. 4. During the pendency of the appeal, the appellant died and his wife was impleaded as additional appellant. 5. I have heard Sri. Salil Narayanan, the learned counsel for the appellant and Sri. A. Rajesh, the learned Special Public Prosecutor for VACB. 6. The learned counsel appearing for the appellant impeached the finding of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the prosecution has miserably failed to prove that there was demand for illegal gratification from the side of the accused and in the absence of the same, the conviction is not sustainable. The counsel further submitted that the accused was illegally trapped and was made scapegoat for having brought out the corrupt practices of the other officers of Crl.A.No.1306/2013 ## -:4:- the department. On the other hand, the learned special Public Prosecutor for VACB supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 7. The prosecution mainly relied on the evidence of PW1, PW3, PW7 and PW11 to prove the incident and fix the culpability on the accused. It is not in dispute that the accused was working as Sub Engineer at the Electrical Major Section, Puthanathani, Malappuram District at the time of the alleged incident. In fact, the arrest and recovery of money from the possession of the accused have not been disputed. According to him, there was a caucus working in his office and he used to question their misdeeds and out of that animosity they worked against him and thus he was fixed in the trap. 8. PW1 is the decoy witness and the defacto complainant. The crime was registered on the basis of Ext.P1 complaint given by him. He is an electrical contractor having a valid license. His evidence would show that he undertook the wiring work of the house under construction belonging to one Kunhippa, the father of PW3. After completion of the wiring Crl.A.No.1306/2013 ## -:5:- work, he made application for getting electric connection. On 4.10.2002, he approached the accused for getting underground cable connection and also for preparing the estimate. Then the accused told him that, to sanction the underground cable connection and also for the preparation of the estimate, he should give him ₹1,000/- as bribe (mamools). He paid a sum of ₹100/- on that day and agreed to pay the balance amount on 7.10.2002. His evidence would further show that on 7.10.2002 the accused repeated the demand when he met him at his office. Then he agreed to pay the balance amount on 9.10.2002. On 9.10.2002, since there was another programme for the accused, the meeting could not take place. The accused asked him to come in the after noon on 10.10.2002 with the balance amount. Thereafter, he reported the matter to the Dy.S.P. attached to VACB, Thrissur who was examined as PW11. 9. PW11 then arranged the trap. Ext.P2 is the trap mahazar. At about 1.45 pm, he along with the vigilance party and witnesses went to the Puthanathani KSEB office. As instructed by PW11, he and one of the witnesses who was examined as PW2 went to the office to meet the accused. But Crl.A.No.1306/2013 ## -:6:- the accused was not there. They were informed that he would come soon. All of them waited for the arrival of the accused. At about 4.15 pm, the accused came to the office in a bike. Then he and PW2 approached the accused at the veranda of the office and the accused asked him whether he brought the money. When he answered in the affirmative, the accused asked him to give the money. He took out MO1 and MO2 series currency notes given by PW11 from his pocket and gave to the accused who accepted it and put it in the left pocket of the pants worn by him. The statement of the decoy was reduced into writing which was marked as Ext.P1 based on which PW11 registered the crime. Ext.P1(a) is the FIR. 10. PW2 is the witness who accompanied PW1 and the vigilance party. He gave evidence in tune with the evidence tendered by PW1. His evidence would disclose that PW11 asked him to accompany PW1 and observe the transaction. PW2 specifically deposed that he witnessed the accused demanding money from PW1 and PW1 handing over the same to the accused. He further deposed that the accused after receiving money from PW1, put it in the left pocket of the pants worn by Crl.A.No.1306/2013 ## -:7:- him. His evidence would further show that after PW1 gave signal to PW11 as instructed, PW11 came to the spot and then PW1 left the place. Thereafter, PW11 along with him approached the accused and after disclosing their identity, asked him whether he took ₹900/- as bribe from PW1. Pleading ignorance, the accused tried to get into the office. Then PW11 took him to the office and his fingers were dipped into the sodium carbonate solution stored in MO4 bottle and colour change was noticed. PW2 further deposed that the accused confessed that the money was kept in the left pocket of his pants and then as instructed by PW11, he took out the MO1 and MO2 series currency notes from his pocket and they were dipped in separate sodium carbonate solution and the colour change was noticed. 11. PW3 is the son of the owner of the building for which the electric connection was applied for. He also supported the prosecution case. He deposed that on 4.10.2002, he went to the electricity office along with PW1 and met the accused. The accused demanded ₹1,000/- as illegal gratification. However, he deposed that he did not witness PW1 handing over the money to the accused. Crl.A.No.1306/2013 ## -:8:- 12. PW11 deposed that on 10.10.2002, he recorded Ext.P1 F.I. statement of PW1 and registered Ext.P1(a) FIR. He further deposed that as instructed by him, PW1 produced MO1 and MO2 series of currency notes, he then applied phenolphthalein powder on MO1 and MO2 series and mahazar was prepared. Thereafter, he kept those notes in the pocket of PW1 and specific instruction was given to him that the tainted notes should be given to the accused on demand. Thereafter, he along with PW1, PW2 and another witness, went to the office of the Electrical Major Section, Puthanathani at 02.30 p.m. He parked the vehicle at a distance of 25 meters away and sent PW1 and PW2 to the office while he waited in the vehicle. But the accused was not in the office. At about 04.15 p.m., when the accused came to the office, PW1 and PW2 met the accused and gave MO1 and MO2 series to him. Then PW1 gave signal to him and he rushed to the office, after disclosing his identity, sought for the tainted notes received by the accused from PW1. But the accused pretended ignorance. The accused told him that the money was put into his pocket without his knowledge by PW1 and it was a trap. He further deposed that he then took the Crl.A.No.1306/2013 -:9:- accused inside the office, made him to sit on a chair and when the hands of the accused were dipped into sodium carbonate solution, the colour change was noticed. He then arrested the accused after preparing Ext.P9 arrest memo. Then the accused admitted that the money was kept in the left pocket of his pants. He instructed PW2 to take the currency from his pocket. PW2 took out the money, which were marked as MO1 and MO2 series. Thereafter, MO1 and MO2 series were dipped into separate sodium carbonate solution and the notes as well as the liquid turned pink. Thereafter, the pants worn by the accused was removed and seized. When the solution was applied to the pants, the pocket as well as the solution also turned pink. 13. Even though PW1 to PW3 and PW11 were cross examined at length, nothing tangible could be extracted from their evidence to discredit their testimony. It is true that there were some minor contradictions in the evidence of PW2 which were marked as Exts.D2 and D3. But those contradictions are insignificant in nature and do not affect the fabric of the prosecution case. The learned counsel for the appellant vehemently argued that, there is no concrete evidence to prove Crl.A.No.1306/2013 ## -:10:- the demand and acceptance. It is not necessary that there should be direct evidence in all cases to prove demand and acceptance. It can be proved by acceptable circumstantial evidence as well. (see **Neeraj Dutta v. State (Govt of NCT of Delhi)** [2023 (1) KLT SN 28 (C.No.28)]). The evidence of PW1, PW2 and PW11 would clearly prove that the accused demanded bribe of Rs.1,000/- from PW1 to give electricity connection to the house of the father of PW3 and thereafter, they arranged a trap and they along with another witness went to the electricity office and PW1 gave MO1 and MO2 series currency notes to the accused, who accepted it. Thus the demand and acceptance of illegal gratification has been amply proved by the prosecution through the evidence of PW1, PW2 and PW11. The evidence, such as, the positive result of the phenolphthalein test on the hands of the accused, on MO1 and MO2 currency notes and on the pocket of the pants worn by the accused are circumstances to suggest that the accused had accepted and handled the tainted notes. 14. Admittedly, the accused was a public servant as defined under Section 2(c) of the P.C Act working in his capacity as Sub Engineer, KSEB on the date of the alleged incident. A Crl.A.No.1306/2013 ## -:11:- contention was raised by the accused that he was not given the charge of the Electrical Section where the house in question was situated. But, the evidence of PW4, the Assistant Engineer as well as Ext.P12(a) would clearly prove that the accused was the Sub Engineer responsible for the Kolathole area where the house was situated during the relevant period. As stated already, here is a case where the accused admitted the recovery of MO1 and MO2 series from his possession. The defence set by him is that other officers in his office against whom he made complaints regarding corruption were instrumental in laying the false trap against him. In the statement filed under Section 313 of Cr.P.C., it is contended that the evidence was manipulated against him and he was arrested after thrusting a file along with some currency making him believe that the file and the currency notes had to be handed over to the Sub Engineer, one Mr.Mohan. But there is absolutely nothing on record at least to probablise the said defence story. As stated already, the evidence of PW1, PW2 and PW11 prove the demand and acceptance of bribe by the accused from PW1, as well as its recovery from his possession. Once the prosecution has established that gratification in any Crl.A.No.1306/2013 -:12:- form had been paid or accepted by a public servant it can be presumed that the gratification was paid or accepted as a motive or reward to do (or forbearing from doing) any official act in a charge under Section 7 of the PC Act. Similarly, once it is proved that the accused accepted the tainted money without any protest, it can be presumed that he obtained the tainted money, within the meaning of Section 13(1)(d) of the PC Act. The accused has failed to offer any satisfactory explanation for the receipt of MO1 and MO2 series currency noes from PW1. Thus the prosecution has succeeded in proving beyond reasonable doubt that the accused has taken gratification other than legal remuneration from PW1 in respect of his official act. 15. The evidence on record, the sequence of events and circumstances narrated above clearly proves that the accused has accepted Rs.1,000/- as illegal gratification from PW1 by abusing his official position as a public servant and availed pecuniary advantage by adopting corrupt and illegal means. Thus, the court below was absolutely justified in convicting the accused for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act. The accused is no more. The fine imposed by the Crl.A.No.1306/2013 -:13:- court below is absolutely reasonable, which shall be deposited by the additional appellant within two months from the date of receipt of a copy of this judgment at the court below. The Criminal Appeal is accordingly dismissed. sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp/AS**