T.K. Sajeevan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 428 OF 2019`** ``` AGAINST THE JUDGMENT DATED 28.01.2019 IN CC 70/2016 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THALASSERY ``` ## **`APPELLANT/ACCUSED:`** ``` T.K.SAJEEVAN, AGED 52 YEARS, ANUSREE, VANDIKKARAN PEEDIKA, ANJARAKANDY AMSOM, MAMBA, KANNUR-670611, (FORMER OVERSEER GRADE III, MUZHIPPILANGAD GRAMA PANCHAYATH) ``` ``` BY ADVS. SRI.K.P.PRADEEP DR SRI.SANAND RAMAKRISHNAN SMT.T.THASMI SRI.M.J.ANOOPA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031. ``` ``` BY ADV GOVERNMENT PLEADER SRI.RAJESH A,SPL G.P(VIGILANCE) ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` Crl.A.No.428 of 2019 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 428 of 2019 --------------------------------------------- Dated this the 14[th] day of December, 2022 ## **JUDGMENT** The judgment dated 28.01.2019 passed by the Enquiry Commissioner and Special Judge, Thalassery, in C.C.No.70/2016 is under challenge in this appeal. By the impugned judgment, the appellant/accused was convicted for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’). 2. I have heard Sri. Sanand Ramakrishnan, the learned counsel appearing for the appellant/accused, and Sri.A.Rajesh, the learned Special Government Pleader (Vigilance) appearing for the respondents. 3. The case of the prosecution is that the appellant/accused, while working as Overseer Grade III at the office of the Grama Panchayath, Muzhuppilangad, abused his official position, committed criminal misconduct, and demanded an amount of Rs.2,000/- as illegal gratification from Sri.Sreejith (PW1) for issuing a permit for constructing a building on the ``` Crl.A.No.428 of 2019 ``` ``` 3 ``` property owned by PW6 and his family on 08.01.2009. On 09.01.2009 at 11.45 a.m., the accused demanded and accepted an amount of Rs.2,000/- from PW1 at the office of the Grama Panchayath as illegal gratification as a reward for issuing a building permit and thereby obtained undue pecuniary advantage. 4. The Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kannur Unit (PW11) registered Ext.P2(a) FIR based on Ext.P2 statement given by PW1. A trap was laid by PW11. The accused was arrested along with the bribe money on 09.01.2009. PW12 completed the investigation and submitted the final report before the Enquiry Commissioner and Special Judge, Kozhikode. Subsequently, the case was transferred to the Special Court at Thalassery. 5. The appellant/accused appeared before the Court, and charges were framed against him, alleging offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act. The accused pleaded not guilty to the charges. 6. The Court below proceeded with the trial. PWs 1 to 12 were examined, and Exts. P1 to P26 were marked on the side of the prosecution. ``` Crl.A.No.428 of 2019 ``` ``` 4 ``` 7. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. 8. The case of the accused is that on the relevant date, while he was sitting in his office along with PW7, one person approached him and all of a sudden kept some money on the table near his seat and left the place. 9. The prosecution mainly relied on the oral evidence of PWs 1 and 3 and Ext. P2 FIS to bring home the charges against the accused/appellant. 10. PW1 was working as a cable operator under PW6. He was managing the affairs of PW6 in his absence. A building plan was submitted in the Grama Panchayath through one Mr. Manoj (PW9) for additional construction in the building owned by PW6. PW1 gave evidence that Manoj told him that to clear ‘the papers’, he had to give money to the Overseer concerned. PW1 and Manoj met the Overseer (accused). After that PW9 told PW1 that the accused demanded Rs.2,000/- as a bribe for approving the building plan. 11. PW1 informed the matter to PW6, the owner of the building. While giving evidence, PW1 denied having given Ext.P2 statement to the effect that the accused on 08.01.2009 had ``` Crl.A.No.428 of 2019 ``` ``` 5 ``` ## demanded a bribe. 12. PW1, while examined in the cross, admitted that at the relevant time on the date of the trap, he placed the bribe money on the table near the seat of the accused in the Grama Panchayath office. PW1 added that when he put the money on the table, the accused picked up the same and ran behind him. When he followed PW1 and reached the exit door, two policemen, who were standing near the door, prevented the accused and placed him under their control. PW3, the independent witness who had accompanied the trap team, also gave evidence that the accused at the relevant time was running behind PW1, saying ‘stop’ ‘stop’, and at that time, the two policemen who were standing there apprehended the accused. 13. The accused was arrested by PW11 along with the bribe money. PW11 conducted the phenolphthalein test, which turned positive. 14. The learned counsel for the appellant/accused contended that the prosecution has miserably failed to establish the demand and acceptance, the essential requirements for establishing the offences alleged against the accused. 15. There is no piece of evidence to establish the demand ``` Crl.A.No.428 of 2019 ``` ``` 6 ``` for bribe as alleged by the prosecution. No prosecution witnesses gave evidence to support the prosecution case of demand. The evidence of PW1 goes in the line that Sri. Manoj (PW9), a building supervisor, told him that he would have to give a bribe to the accused to clear the building plan. PW9 did not support the prosecution. The evidence of PW3, the independent witnesses examined to prove the trap, is to the effect that just before the trap, which led to the arrest of the accused, he was found running behind PW1, who had placed the bribe money on the table placed near the seat of the accused. This is in consonance with the defence case that the accused never demanded any money as a bribe and that PW1 was putting the money as per the instructions of the trap team led by PW11 at the relevant time. 16. The evidence led by the prosecution consistently reveals that PW1 kept the money on the table and left, and the accused picked up the money and ran after him. The fact that the accused picked up the money itself cannot constitute proof of demand or acceptance. The prosecution case of demand and acceptance turns doubtful here. 17. It may be true that the prosecution could prove the seizure of MO2 currencies from the possession of the accused. It is ``` Crl.A.No.428 of 2019 ``` ``` 7 ``` trite that recovery of the bribe money is insufficient to establish the offences alleged under Sections 7 and 13 of the Act. 18. 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, and 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 Section 7 or Section 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 Pradesh** [(2014) 13 SCC 55] and **Rajesh Gupta v. State through Central Bureau of Investigation** (MANU/SC/0527/2022)}. 19. The prosecution, therefore, has not succeeded in establishing the offences alleged against the accused. The impugned judgment of conviction and sentence passed by the ``` Crl.A.No.428 of 2019 ``` ``` 8 ``` Trial Court cannot be sustained. The appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK