Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 CRL.A NO. 427 OF 2014 AGAINST THE JUDGMENT DATED 11.4.2014 IN CC 61/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM APPELLANT/ACCUSED NO.4: MANIYAN, MILMA BOOTH OWNER, VAZHATHUNDHIL VEEDU, THRIKKUNNAPPUZHA PANCHAYATH, WARD NO.III, VALIYAPARAMBU, HARIPPAD, KARTHIKAPPALLY TALUK. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SMT S REKHA SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH CRL.A.428/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 CRL.A NO. 428 OF 2014 AGAINST THE JUDGMENT DATED 11.4.2014 IN CC 61/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM APPELLANT/ACCUSED NO.1: NISSAM, S/O.ILLYAS, ANUPAMA HOUSE, U.P.S.JUNCTION, PERINGAMALA PANCHAYATH, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.T.ANIL KUMAR SRI.M.VIVEK RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SMT S REKHA SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH CRL.A.427/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-
JUDGMENT
Dated this the 31st day of July, 2023 These appeals have been preferred by the accused Nos.1 and 4 in C.C.No.61 of 2008 on the files of the Enquiry Commissioner and Special Judge, Kottayam (for short, ‘the court below’) challenging the judgment dated 11.04.2014 convicting and sentencing them under Sections 7, 8 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the P.C Act’).
2. The prosecution case in short is as follows: The
accused Nos.1 and 2 were working as Excise Guard and the accused No.3 was working as Excise Inspector at Excise Range Office, Karthikappally. The accused No.3 registered a crime as O.R.No.48 of 2004 under Section 8(1) and (2) of the Abkari Act against one Jayakumar and two identified persons who were alleged to have supplied illicit arrack to Jayakumar. In connection with the above crime, the Excise party led by the accused No.3 went to the residence of PW1 on 07.04.2004 at 7.30 a.m. The Excise party consisted of the accused Nos.1 to 3 -:4:- and PW4. The Excise party alleged that PW1 is the person who had supplied illicit arrack to the above said Jayakumar and
conducted search of the residence and premises of PW1. Aggrieved by this act of the Excise party, PW1 went to the Excise Inspector (A3) who was in the jeep and said that he is innocent and does not have any connection with the crime. At that time, the accused No.1, who is the Excise Guard, took PW1 to a little distance and asked him to come to the Excise Office and explain about the allegations before the arrested accused is produced in court. PW1 immediately contacted his friend Robin (CW35) and the said Robin and one Adv.Harikumar (PW6) went to the Excise office for making enquiry about the case. They came back and
informed PW1 that the Excise officials are demanding Rs.25,000/- for not including his name and the name of his accomplice as accused. Later, the above said amount was reduced to Rs.20,000/-. PW1 who was reluctant to give the money approached PW10, Dy.S.P., VACB, Allappey and preferred Ext.P1(a) complaint on 13.04.2004. Thereafter, PW10 arranged trap after registering Ext.P12 FIR. Presence of PW2 and CW3 were arranged as official witnesses. PW10 explained to PW1,
-:5:- PW2 and CW3 about the trap formalities and demonstrated chemical reaction of phenolphthalein powder with sodium carbonate solution. The currency notes produced by PW1 were applied with phenolphthalein powder and gave back to PW1 for being given to the Excise Guard on demand. Thereafter the trap
team consisting of PW1, PW2, PW10, CW3 and policemen proceeded to the Excise Range Office in three vehicles. On reaching the Excise Range Office, PW1 went inside and asked for the accused No.1. The Station writer informed him that the accused No.1 was not in the station and after making a phone call to the accused No.1, the writer told PW1 that the accused No.1 will be coming by 1.00 p.m., and had asked PW1 to wait. PW1 informed this to Dy.S.P. and waited there. The accused No.1
reached there at 1.00 p.m., and PW1 offered money to the accused No.1 who refused to accept it personally and asked PW1 to hand it over to the accused No.4 who was conducting a Milma booth near the Excise Office. Thereafter the accused No.1 guided PW1 to the Milma booth of the accused No.4 and asked PW1 to hand over the amount. Then PW1 handed over the amount to the accused No.4, who after counting it kept in his pocket. Once the
-:6:-
accused No.4 kept the amount in his pocket, PW1 gave signal to the Vigilance party. On receiving the signal, the vigilance party led by PW10 rushed to the spot. The vigilance party then recovered MO1 series of currency notes from the possession of the accused No.4 and arrested him. The accused No.1 ran away from the spot.
3. After investigation, the final report was filed at the court below which took cognizance of the case as C.C.No.61/2008.
4. All the accused appeared at the court below. After
hearing both sides, the court below framed charge against the accused under Sections 7, 8 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') read
with Section 34 of the IPC. The charge was read over and explained to them who pleaded not guilty. The prosecution examined PW1 to PW10 and marked Exts. P1 to P16. MO1 to
MO6 were identified. On the side of the defence, DW1 and DW2 were examined and Exts. D1 to D6 were marked. After trial, the court below found the accused No.1 guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13 (2) of the -:7:- PC Act and he was convicted for the said offence. The court below also found the accused No.4 guilty for the offence punishable under Section 8 of the PC Act and he was convicted
for the said offence. The accused No.1 was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹25,000/-, in default to suffer simple imprisonment for a period of three months under Section 7 of the PC Act and to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹50,000/-, in default to suffer simple imprisonment for a period of six months under Section 13(1)(d) read with 13(2) of the PC Act. The accused No.4 was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of ₹5,000/-, in default to suffer simple imprisonment for a period of
two months. The accused Nos. 2 and 3 were found not guilty and they were acquitted. Challenging the conviction and sentence, the accused No.1 preferred Crl.A.No.428/2014 and the accused No.2 preferred Crl.A.No.427/2014.
5. I have heard Sri. B. Raman Pillai, the learned Senior Counsel appearing for the accused No.1, Sri. S. Rajeev, the learned counsel appearing for the accused No.4 and Smt. S. -:8:- Rekha, the learned Senior Public Prosecutor.
6. The learned counsel appearing for the accused Nos. 1
and 4 impeached the finding of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned Senior counsel submitted that there is absolutely no evidence to prove that there was demand for any illegal gratification from the side of the accused No.1 and in the absence of the same, the
conviction against him is not sustainable. The learned counsel for the accused No.4 Sri. S. Rajeev submitted that there is absolutely no material on record to connect the accused No.4 with the crime and conviction against him also is not sustainable. On the other hand, the learned Senior Public Prosecutor Smt. S. Rekha, 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, PW2 and PW10 to prove the incident and fix the culpability on the accused. PW1 is the decoy witness. PW2 is the independent witness who was present at the time of the trap. PW10 is the Dy.S.P who laid the trap, effected the recovery and arrested the -:9:- accused. As stated already, the allegation raised by PW1 is that the accused No.1 made demand for bribe from him for not
arraying him as accused in an Abkari crime. According to the prosecution, the first demand was made on 7.4.2004, the second demand was made on 8.4.2004 and the final one was made on the date of trap, that is on 13.4.2004. So far as the first demand is concerned, PW1 gave evidence that, after the accused Nos. 1 to 3 conducted search at his residence, he went to the accused No.3 who was sitting in the jeep and said that he is innocent and does not have any connection with the crime. At that time, the accused No.1 took him to a little distance and asked him to come to the Excise office and explain about the allegations, before the
arrested accused is produced before court. Thus, there is no
demand for bribe as such on 7.4.2004. On the other hand, according to PW1, the accused No.1 told him to come to the excise office and meet the accused No.3. PW1 further deposed that on the next day, that is on 8.4.2004, his friend CW35 and advocate, PW6 visited the excise office on his behalf, to enquire about the Abkari case and at that time, the accused No.1 made demand to them. Thus, even according to the prosecution case,
-:10:- the demand of bribe was made by the accused No.1, not directly to PW1, but through PW6 and CW35. PW1 deposed that PW6 and CW35 told him that the accused No.1 has made a demand. But the said piece of evidence can only be treated as a hear-say evidence which is in-admissible. PW6, to whom the demand was allegedly made did not support the prosecution, but turned hostile to the prosecution. The prosecution did not examine CW35. Thus, so far as the demand made on 8.4.2004 is concerned, absolutely no evidence has been adduced by the
prosecution. That apart, in Ext.P1 FI statement of PW1 and in Ext.P1(a) written complaint of PW1, his version is that, on 8.4.2004 he himself personally went to the excise office and met the accused No.1 who made a demand personally to him. The evidence given by PW1 before the court is just contrary to that. The final demand was on the date of the trap. It is true that PW1 gave evidence that when the accused No.1 reached the excise office at 1 pm, the accused No.1 asked him whether he brought the money and when he said 'yes', the accused No.1 refused to accept it personally and asked PW1 to hand over it to the accused No.4 who was running a milma booth near the excise
-:11:- office. PW2 is an independent witness. PW2 and Dy.S.P who was part of the trap team did not witness the demand so made by the accused No.1, at that time, to PW1. They only witnessed the acceptance.
8. It is settled that the demand for illegal gratification by
the accused is a pre-requisite for constituting an offence under sections 7 and 13(1)(d) of the PC Act. A three Judge Bench of the Apex Court in Satyanarayana Murthy P. v. District Inspector of Police and Another (2015 KHC 4615), has held that mere acceptance of any amount by a public servant allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto is not sufficient to bring home the charge under section 7 or 13(1)(d) of the PC Act. Recently, the Constitution Bench of the Apex Court in Neeraj Datta v. State (Government of NCT of Delhi) [2023 KLT OnLine 1212 (SC)] reiterated that demand for gratification and acceptance thereof is sine qua non for the offence under sections 7 and 13(1)(d) of the PC Act. It is true that the proof of demand and acceptance can also be proved by circumstantial evidence in the absence of direct, oral and documentary evidence. But this is a case where,
-:12:- going by the prosecution case, there is direct evidence to prove the demand. One of the main witnesses who was cited to prove
the demand, PW6, did not support the prosecution. Another independent witness cited to prove the demand was not examined. PW1's evidence regarding the demand is contrary to the statement given by him to the police. That apart, he has no case that the accused made any demand to him directly. In the absence of any evidence to prove the demand, either on 7.4.2004 or 8.4.2004, as alleged by the prosecution, the evidence of PW1 alone that the accused No.1 made demand to him on 13.4.2004, on the date of trap, cannot be relied on to rest the conviction on the accused.
9. Since the prosecution has failed to prove the demand of illegal gratification, I hold that the conviction of the accused No.1 under Sections 7 and 13(1)(d) read with 13(2) of the PC Act
cannot be sustained. Section 8 of the PC Act is attracted in a case where a private person accepts from any person, be it a public servant or not, any gratification for himself or for any other person as a motive or reward for inducing, by corrupt or illegal means, any public servant, to do or to forbear to do any -:13:- official act, etc. Since I have already found that the prosecution has failed to prove the demand made by the accused No.1, Section 8 of the PC Act against the accused No.4 also will not be attracted. That apart, there is no satisfactory evidence to show that the accused No.4 has made any demand. For the above reasons, the conviction and sentence of the accused Nos. 1 and 4 are set aside, they are found not guilty and are acquitted. Their bail bonds stand cancelled. Both appeals are allowed. Sd/- DR. KAUSER EDAPPAGATH JUDGE kp