IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 CRL.A.No. 473 of 2004() ----------------------- CC.7/2002 of ENQUIRY COMMR. & SPL. JUDGE, THIRUVANANTHAPURAM .................... APPELLANT: ACCUSED: ---------------------- E.V. SHAJI, S/O. KONCHUKUNJU, (FORMERLY), FISHERIES OFFICER, FISHSERMEN WELFARE FUND OFFICE, MUKKADA, KOLLAM. BY ADV. SRI.K.K.VIJAYAN RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY ITS PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. I.V. PROMOD. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.6.2011, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: "C.R." P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL NO. 473 OF 2004 = = = = = = = = = = = = = DATED THIS, THE 21ST DAY OF JUNE, 2011. J U D G M E N T The Enquiry Commissioner & special Judge, Thiruvananthapuram, in C.C. No. 7 of 2002 convicted the appellant for offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') and sentenced to rigorous imprisonment for one year on each count with a fine of Rs. 3,000/- and Rs. 5,000/- under Section 7 and 13(2) r/w Section 13(1)(d) respectively. Assailing the above conviction and sentence, this appeal is preferred. 2. PW.1 Jimmy John belongs to Fishermen community. In 2001, he was studying in ITI, Chandanathopu. He was entitled to stipend as the son of a fisherman. The appellant, who was an employee in the Kerala Legislative Secretariat, was working as Fisheries Officer in the Office of the Fishermen Welfare Fund Board, Padappakkara, at Mukkada, in Kollam District, on deputation basis. PW.1 obtained an application form to apply for stipend. It contained an inner form for certifying the community of the applicant. It was sent to the appellant, who had to certify that PW.1 is the CRL.A. 473/2004 2 son of a fisherman, through PW.2, the sister of PW.1 on 15.1.2001. The father of the appellant John Bosco died on 26.8.2000. He was a member of the Fishermen Welfare Fund. The bereaved members of the family of the fisherman are entitled to a solatium amounting to Rs.5,000/-. PW.3, the mother of PW.1 applied for the same and a cheque for Rs. 5,000/- was released on 6.1.2001 by the appellant. At the time of delivering the cheque, the appellant demanded a sum of Rs. 500/-. But PW.3 did not heed. When PW.2 requested for the certificate, according to the prosecution, the appellant demanded Rs. 500/- and stated that unless the payment is made, the certificate would not be issued. On 17.1.2001, PW.1 along with PW.3 went to the appellant. The appellant repeated his demand and sent them without issuing the certificate. Being got aggrieved, PW.1 went to PW.8, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kollam and lodged Ext.Ext.P1 First Information Statement on the basis of which a case as Crime No. 1/2001 for offence under Section 7 of the PC Act was registered. PW.8 made arrangements for the trap. M.O.1. series, five 100 rupee currency notes brought by PW.1 were seized by PW.8 It was smeared with Phenolphthalein powder and gave back to PW.1 with instruction to pay the same only on demand. PW.8 along with the independent witnesses and trap party proceeded to the office of the CRL.A. 473/2004 3 appellant. PW.7, the then Deputy Registrar of Co-operative Societies, whose presence was procured by PW.8 to witness the trap, was sent along with PW.1 as a shadow witness. At about 5 p.m., when PW.1 gave Ext.P3 application for issuing the certificate, the appellant repeated the demand pursuant to which PW.1 paid M.O.1 series to the appellant. It was accepted by the appellant and put it into the drawer of the table. As instructed earlier, PW.1 conveyed signal. Getting the signal, PW.8 rushed to the appellant, caught red handed and M.O.1 series were recovered for which separate Mahazar was prepared. PW.8 took over the investigation which was later taken over by PW.9, who, after obtaining sanction under Section 19, submitted the final report before the trial court. 3. The learned Judge took cognizance and issued process, responding to which the appellant appeared. Copy of the final report with connected records were furnished. Either side was heard. On finding that there are materials to send the appellant for trial, a charge for the said offences was framed to which the appellant pleaded not guilty when read over and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P21 were marked. M.Os. 1 to 6 were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the CRL.A. 473/2004 4 Code of Criminal Procedure. The appellant denied the incriminating evidence against him. He did not put up a specific defence . Though he stated that he had been filing a separate statement, no such statement was filed. One witness was examined as DW.1. The learned Special Judge, on appraisal of the evidence, arrived at a finding against the appellant consequent to which the appellant was convicted and sentenced as above. 4. The fact that the appellant was working as Fisheries Officer and in that capacity he was a public servant coming under Section 2(c) of the PC Act is not at all disputed. It was proved by the testimony of PWs 1 to 3. PW.6, the Regional Executive Officer of the Fisherman Welfare Fund Board, Regional Office, Thiruvananthapuram, had also given evidence to that effect. Ext.P6 is the appointment order. Ext.P7 is the charge report. The above evidence of PWs 1, 2,3 and 6 supported by Exts.P6 and P7 was not at all assailed. The learned counsel for the appellant fairly conceded that the appellant was working as Fisheries Officer at the alleged time and in that capacity he was a public servant coming under Section 2(c) of the PC Act. In the above circumstances, I concur with the trial court and find that the appellant was a public servant as on 19.1.2001 as alleged by the prosecution. The evidence of PW.5, the then Legislative Secretary would show that he was the authority competent to remove the appellant from the CRL.A. 473/2004 5 office and that PW.5 got the case records. After verifying the records, he issued Ext.P5 order according sanction to prosecute the appellant. That order of PW.5 was also not assailed by the appellant. I find no ground to reject that evidence. Basing upon such evidence, I further find that the appellant was prosecuted with due sanction. 5. In support of the demand for illegal gratification, the prosecution would rely upon the testimony of PWs 1 to 3 and that of PW.7. Regarding the acceptance, the prosecution would rely upon the testimony of PWs 1 and 7 coupled with the recovery of M.O.1 series from the drawer of the table of the appellant. In support of the recovery of M.O.1 series the evidence of PWs 1,7 and that of PW8 are relied upon by the prosecution. 6. PW.1 would depose that his father late John Bosco was a fisherman who died on 26.8.2000. A sum of Rs. 5,000/- was obtained from the Fishermen Welfare Fund through a cheque which was acknowledged by PW.3 on 6.1.2001. When the cheque was handed over, the appellant demanded Rs. 500/- as illegal gratification. PW.3 did not pay any amount. Ext.P2 pass book was retained by the appellant. When PW.3 stated about the demand and the retention of the pass book, PW.1 stated that there was no necessity for paying any gratification. To apply for stipend, PW.1 obtained Ext.P3 application form. Ext.P3 was filled up and sent to the CRL.A. 473/2004 6 appellant through PW.2 to certify the community. On 15.1.2001, PW.2 approached the appellant with Ext.P3. The appellant demanded Rs. 500/- as illegal gratification and stated that the Form would be signed as and when payment was made. PW.2 returned. On 17.1.2001, PW.1 and PW.3 together met the appellant along with Ext.P3. The appellant stated that without seeing him properly, they had taken the cheque and enquired whether any amount was due to the Welfare Fund. P.W.1 had a photocopy of Ext.P2. Referring to Ext.P2, PW.1 convinced the appellant that there was no dues. However, the appellant repeated his demand for Rs. 500/- and asked them to meet him on 19.1.2001 when he would issue the certificate. PWs 1 and 3 were sent back. PW.1, therefore went to the Vigilance Office and lodged Ext.P1 First Information Statement. The Deputy Superintendent of Police arranged to trap the appellant. Witnesses were procured. M.O.1 series was taken from PW.1. He put his initials over M.O.1 series with date. Then M.O.1 series were smeared with Phenolphthalein powder and demonstrated Phenolphthalein test. When the hands of the Police constable, who smeared Phenolphthalein powder on M.O. 1 series were dipped in calcium solution, the hands of the police constable turned pink. The solution was sealed in a bottle which was identified as M.O.2. Ext.P13 mahazar was prepared and M.O.1 series were entrusted back to PW.1 with instruction to CRL.A. 473/2004 7 pay it to the appellant only on demand. PW.1, along with PWs.7, 8 and other independent witness proceeded to the office of the appellant. By about 2'o clock they reached the office of the appellant. PW.8 and the trap party took positions in and around the office of the appellant. PW.1 was sent to the office along with PW.7 with instruction to shadow the dealings. On enquiry, it was known that the appellant had gone out and would be returning by about 4'o clock. By about 4'o clock, the appellant returned. Many other persons who were waiting were disposed and by about 5 p.m. PW.1 was called inside the room and asked whether PW.1 had brought the matter which he had mentioned earlier. Understanding that the matter mentioned was the bribe demanded by the appellant, PW.1 handed over M.O.1 series to the appellant. The appellant accepted the same with his right hand and put it inside the drawer of the table. Then he got Ext.P3 application, signed it and handed over to PW.1. PW.1 conveyed signal. On getting the signal PW.8 rushed to the appellant along with PW.7. PW.8 disclosed his identity and introduced PW.7. On repeated query, the appellant conceded that he had accepted money from PW.1 and kept inside the table. Tests were conducted and the appellant was arrested. M.O.1 series were recovered. CRL.A. 473/2004 8 7. PW2 would depose that she is the sister of PW.1 and that on 15.1.2001, she went to the appellant along with Ext.P3 application form and requested for issuing the certificate. The appellant asked the pass book. PW.2 stated that it was with the appellant. The appellant enquired the name of her father. When she told the name of the father, the appellant stated that they had gone with the cheque without giving anything to him and further asked PW.2 to meet him after two days with Rs. 500/-. PW.2 would further depose that her father was a fisherman who died on 26.8.2000 and that the cheque mentioned by the appellant was the cheque issued from the Welfare Fund Board towards the benefits following death and that the passbook referred to by the appellant was Ext.P2. 8. PW.3, the mother of PW.1 would depose that on 26.8.2000 her husband John Bosco died and Rs. 5,000/- was obtained through cheque on 6.1.2001 from the office of the appellant. At the time of delivery of cheque, the appellant took Ext.P2 pass book stating that it would be returned on giving Rs. 500/- after collecting the cheque amount. PW.3 got the cheque encashed; but the amount demanded by the appellant was not paid since her children objected. PW.2 was sent to the appellant with Ext.P3. But PW.2 was returned by the appellant demanding bribe. On 17.2.2001 PW.3 along with PW.1, went to the office of the appellant, met him and requested to CRL.A. 473/2004 9 issue the certificate. The appellant demanded Rs. 500/- as bribe and asked them to meet him on 19.1.2001 with Rs. 500/-. The appellant also stated that Ext.P2 pass book was abandoned by her at the office. According to PW.2 it was retained by the appellant. Thereafter, PW.1 was sent to the appellant with Rs. 500/- (M.O.1 series). 9. PW.7 would depose that he was working as Deputy Registrar of Co-operative Societies and as requested by the Vigilance party he had been to the office of PW.8. PW.8 introduced PW.1 and appraised the complaint of PW.1. Phenolphthalein test was demonstrated after smearing Phenolphthalein powder over M.O.1 series given by PW.1. M.O.1 series were entrusted to PW.1 with instruction to hand it over only on demand. M.O.2 is the calcium solution used for demonstrating Phenolphthalein test. It was taken in a bottle and sealed. Ext.P13 entrustment mahazar was prepared narrating the Phenolphthalein test and describing the identity of M.O.1 series on which PW.8 had put his initials. PW.7 was asked to accompany PW.1 as a shadow witness. Accordingly, PW.7 went along with PW.1. PW.8 and party took positions in and around the office of the appellant. When they reached the office, the appellant had gone out. By about 4 p.m. the appellant returned. Appellant, first disposed others who were waiting to meet him. Thereafter, PW.1 was called and asked whether CRL.A. 473/2004 10 he had brought Rs. 500/- mentioned earlier. PW.1 handed over M.O.1 series stating that the money was brought. The appellant accepted the same with his right hand and put into the drawer of the table. Thereafter, the appellant signed some paper and entrusted to PW.1. PW.1 conveyed the signal. Getting signal, PW.8 along with the party rushed to the office of the appellant. PW.1 and 7 were also taken inside. PW.8 disclosed his identity and introduced PW.7. Thereafter, a body search of the raid party was conducted. PW.8 asked the appellant whether he had received money from PW.1. Though the appellant remained silent for sometime, after repeated questioning, he conceded. Calcium solution was taken and the hands of PWs. 7 and 8 were dipped. There was no change. M.O.3 is the solution used for dipping the hands of the PWs 7 and 8. Thereafter, the appellant was asked to dip his right hand. The appellant did so. The hand as well as the calcium solution turned pink. M.O.4 is the solution used for dipping the hand of the appellant. Then PW.8 asked as to where the appellant had kept the amount received from PW.1. The appellant stated that it was kept inside the drawer of the table on the right side. PW.8 got the drawer opened through another independent witness and took out M.O.1 series which was found over a form. The identity of the same was verified with reference to Ext.P13 mahazar. In another glass of calcium solution, a corner of M.O.1 CRL.A. 473/2004 11 series was dipped. The dipped portion of M.O.1 series as well as the calcium solution turned pink. The solution was poured into a bottle and sealed. M.O.5 is the solution so taken. When calcium solution was sprinkled over the form inside the drawer of the table, the part of the form over which the calcium solution fell turned pink. M.O.6 is the form. There was yet another sum of Rs. 1,187/- in the drawer of the table. A sum of Rs. 3,550/- was searched out from the pocket of the shirt of the appellant. Ext.P14 mahazar detailing the recovery of M.O.1 series was prepared. 14 documents were seized from the office of the appellant after preparing Ext.P15 inventory. PW.7 is an attestor to Exts.P14 and P15. Ext.P16 is yet another inventory. 10. PW.8 had given evidence regarding the recording of Ext.P1 First Information Statement, registering of Ext.P17 First Information Report, the trap, preparation of Ext. P13 and P14 mahazars, recovery of M.O.1 series from the drawer of the table of the appellant and the phenolphthalein tests conducted. The evidence of PW.8 corroborates with the evidence of PWs 1 and 7 in all material particulars. 11. On going through the evidence of PWs.1, 7 and 8 coupled with Exts. P13 and P14, I find that their evidence is believable regarding the recovery of M.O.1 series from the drawer of the table. Though the appellant CRL.A. 473/2004 12 had not advanced any specific defence, the learned counsel for the appellant argued that deceased John Bosco had a country boat and fishing net and that contributions to the Welfare Fund were due in respect of the country boat and fishing net and that John Bosco was a defaulter since 1988. The total amount due would come to Rs. 502/-. The appellant only demanded to pay that amount and that M.O.1 series are the money put into the drawer of the table towards the amount due to the Fishermen Welfare Fund relating to the fishing net and country boat owned by late John Bosco. In one way, the demand and acceptance was not disputed. But the plea is that it was a legally due amount and acceptance is justified. By the nature of the argument, in the light of Section 20 of the PC Act, burden is heavy on the appellant to establish that it was a legally due amount. Learned counsel had given reliance to Ext.P2 which would show that late John Bosco was remitting contribution relating to the fishing net and country boat till 1988 and thereafter, there was no remittance at all. PWs 1 to 3 also admitted that late John Bosco had owned a fishing net and country boat; but according to them, it was sold by late John Bosco. The date of the sale of the country boat and fishing net is not disclosed in evidence. According to the prosecution, no amount was liable to be paid by PWs 1 to 3 and that on satisfying that there was no dues from late John Bosco, the benefit from the CRL.A. 473/2004 13 Welfare Fund was disbursed. The prosecution would rely upon the testimony of PW.6, the Regional Executive Officer of the Welfare Fund Board at Thiruvananthapuram region. PW.6 had given evidence that the amount due from the Welfare Fund Board was sanctioned after satisfying that all the dues were cleared. It was further deposed that for issuing a certificate of the nature sought by PW.1, no dues is to be levied. The evidence of PW.6 on that aspect remains unimpeached. The learned counsel for the appellant could not bring out any material to establish that to issue a certificate in Ext.P3 in favour of PW.1 to obtain stipend, any such arrears is to be cleared. In the above circumstances, I find that the trial court was correct in arriving at a conclusion that no amount was liable to be paid by PW.1 for getting a certificate in Ext.P3. But, the appellant had accepted M.O.1 series from PW.1. 12. Once it is established that the public servant had taken gratification, unless it is otherwise proved, it has to be treated that it is an illegal gratification as a motive or reward for discharging the duties as a public servant. So is the mandate of Section 20 of the PC Act. According to the learned counsel for the appellant, the evidence of PWs 1 to 3 regarding the demand for bribe is not at all believable. It was also argued that there is no evidence in support of PWs 1 to 3 that PW.1, 2 or 3 had CRL.A. 473/2004 14 gone to the office of the appellant either on 15.1.2001 or 17.1.2001 so as to have a chance for the appellant to make any demand. It was also argued that DW.1 was working as a guide in the office of the appellant and that prosecution had deliberately suppressed that witness. In the nature of the argument, there is demand and M.O.1 series is the demanded amount. The dispute is only whether the demand is for bribe or towards dues on the boat and net. The evidence of PW.6 is more than sufficient to answer the dispute against the appellant. However, I find that it would be appropriate to consider the other argument. 13. DW.1 would depose that on 19.1.2001 when the appellant was arrested, she was working in the office as a guide. According to DW.1, by about 2 p.m. PW.1 reached the office and enquired about the appellant to which she replied that the appellant had gone out on official duties and would be returning only by 4 p.m. PW.1 was accompanied by another man. Others also were waiting for the appellant. Ext.P3 application was filled up by her referring to the pass book. She would further depose that she had not heard the appellant making any demand with PW.1; but she had seen PW.1 putting some money in the drawer of the table of the appellant and that soon the Vigilance Officers rushed to the office of the appellant and the appellant was arrested. The evidence of DW.1 would further show that CRL.A. 473/2004 15 she was informed about the Vigilance party even before the arrival of the appellant and when the appellant returned he was appraised about the presence of the Vigilance party. In cross examination she had deposed that by about 5 p.m. she left the office after taking permission from the Vigilance party. The evidence of DW.1 would show that, even if it is believed as such, there is nothing revealed out against the prosecution. She had admitted that she had seen PW.1 putting the currency notes in the drawer of the table. She had in unambiguous terms stated that she had not heard about the oral transaction between the appellant and PW.1. If the argument advanced by the learned counsel for the appellant is true, appellant might have asked PW.1 to clear the arrears. But DW.1 hadn't heard any oral transaction. That indicates that even by the defence version, DW.1 was not present. If it is taken that DW.1 was then present, there was no demand for clearance of dues. Adding to the above, if there was demand for clearing arrears and PW.1 paying it, the appellant would have accepted and issued receipts instead of PW.1 putting it into the drawer of the table. There is no case that the appellant offered receipt for the amount, either the appellant received by hand or PW.1 put it inside the drawer of the table and that PW.1 went out without accepting receipt. In this view of the matter the defence version didn't appear probable. The learned counsel for the CRL.A. 473/2004 16 appellant, relying upon the evidence of DW.1 submitted that the application form was filled up by DW.1 only on 19.1.2001 and therefore, the evidence of PWs 1 to 3 regarding the demand made by the appellant on 15.1.2001 and 17.1.2001 is to be rejected in toto. In the light of the arguments advanced I had a critical analysis of the evidence of PWs 1 to 3, with reference to the evidence of DW.1. The appellant has no case that PWs 1 to 3 were anyway motivated against him so as to implicate him in a case like this. No good reason is coming forward for rejecting the evidence of PWs 1 to 3. In the above circumstances, I find that the learned Special Judge had correctly given reliance to the testimony of PWs 1 to 3 regarding the demand. In the light of the evidence of PWs 1 to 3, I find that the evidence of DW.1 is not believable. Even if it is assumed that DW.1 was present in the office on that day, the non examination of DW.1 by the prosecution is not at all a good reason to reject the evidence of the prosecution as such because, evidently DW.1 had not heard the oral transaction between PW.1