IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 CRL.A.No. 833 of 2002() ----------------------- CC.18/2001 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT(S): ACCUSED --------------------- SMT.R.VILASINI, VILLAGE OFFICER, UZHAMALACKAL VILLAGE, NEDUMANGAD TALUK THIRUVANANTHAPURAM. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM, (DYPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.) BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- Crl.A.NO.833 OF 2002 --------------------------------------------- Dated 28th January, 2011 JUDGMENT Appellant was the Village Officer of Uzhamalackal village during February, 1999. She was convicted and sentenced for the offence under Section 7 and 13(2) read with Section 13 (1)(d) of Prevention of Corruption Act, 1988 by Special Judge, Vigilance, Thiruvananthapuram in C.C.18/2001. Appeal is filed challenging the conviction and the sentence. 2. Prosecution case is that PW1 Victoria submitted Ext.P2 application before Tahsildar, Nedumangad on 4/2/1999 for obtaining a copy of Thandaper register and also for possession certificate, location certificate and location map, to apply for a housing loan CRA 833/02 2 from District Co-operative Bank. As the Tahsildar was not present on that day PW5 Deputy Tahsildar, endorsed in Ext.P2 to the Village Officer, Uzhamalackal for a report. PW1 along with her husband went to Uzhamalackal village office and submitted the application. It is alleged that appellant did not issue the certificates and instead demanded a bribe of Rs.150/- for issuing the certificates. Therefore, PW1 along with her husband went to PW10 Deputy Superintendent of Police, Vigilance and furnished Ext.P1 FI statement. It was recorded by PW10, based on which PW10 registered the crime after preparing Ext.P1(a) FIR. As PW1 was prepared to co-operate for arranging trap, she was asked to appear before PW10 with Rs.150/- to be paid as bribe on the morning of 20/2/1999. PW10 submitted a CRA 833/02 3 requisition and got the presence of PW3, Senior Superintendent of department of Animal Husbandry along with Deputy Director of the same department. PW1 produced MO.1 series of currency notes which are to be paid as bribe. PW10 introduced PW1 to PW3 and the other officers among themselves. PW2, the woman police constable was present at that time. PW10 explained the procedure of arranging trap by demonstrating the effect of phenolphthalein powder in lime water. After smearing phenolphthalein powder on Mo.1 series of currency notes produced by PW1, it was returned to her advising her to give it to the appellant only if demanded by him. PW1 along with PW2, PW3 and the other officer were directed to go to the Village office, instructing PW1 to give the prearranged signal, if appellant receives CRA 833/02 4 the bribe. Pws.2, 3 and the other officer were directed to follow PW1 and to hear and watch what transpires when PW1 approaches appellant. Ext.P3 pre-trap mahazar was also prepared. PW1 followed by Pws.2 and 3 and the other officer reached the village office. PW1 approached appellant and asked for the certificate. Appellant holding a file on her right hand walked towards the staff room, which lies to the east of the room of the appellant and by sign directed PW1 to follow her. After the appellant reached the staff room, she demanded the bribe. PW1 handed over MO.1 currency notes to the appellant. She received it with her left hand and put it on the vacant chair in that room and sat on the same. PW1 gave the prearranged signal. It was transferred to PW10 who was waiting outside. He rushed to the room CRA 833/02 5 and questioned the appellant. As PW1 disclosed that appellant received the bribe and kept it on the chair and sat on it, her left hand was immersed in lime water which turned pink. She was arrested and MO.1 series were seized. Ext.P4 post trap mahazar was prepared. Appellant was produced before the Special Judge along with a remand report. When appellant was produced she disclosed to the Special Judge, which is seen recorded in Ext.D5 remand report, and marked as Ext.D5(a), that PW1 offered her bribe but she refused to receive it and the currency notes fell on the chair and she had not demanded or received any bribe. Appellant was subsequently granted bail. After completing the investigation, PW10 laid the charge. Learned Special Judge took cognizance of the offences. Appellant was defended by a CRA 833/02 6 counsel of her choice. 3. When charge for the offence under Section 13(2) read with Section 13(1)(d) and Section 7 of Prevention of Corruption Act was framed and read over, she pleaded not guilty. Prosecution examined ten witnesses and marked 13 exhibits and identified MOs.1 to 5. After closing the prosecution evidence, appellant was questioned under Section 313 of Code of Criminal Procedure. She was called upon to enter on her defence. Appellant examined three witnesses and got marked Exts.D1 to D7. 4. Learned Special Judge on the evidence found that evidence of Pws.1,2 and 3 establish that appellant demanded bribe and on 20/2/1999 in the presence of Pws.2 and 3, PW1 paid MO.1 series of currency notes as bribe when she demanded it and appellant received CRA 833/02 7 MO.1 currency notes as bribe. Though PW4 had supported the defence during trial, learned Special Judge did not rely on his evidence finding that he is not a trustworthy witness. The case of the appellant that the alleged demand for bribe on 15/2/1999 cannot be true as appellant was not in the office at that time as claimed by PW1. It was sought to be proved by examination of Dws.2 and 3 and production of Ext.D2(a) and Ext.D7(b) mahazars. Learned Special Judge found that no reliance could be placed on their evidence or Ext.D7(b) mahazar. It was found that those materials were created to cause suspicion in order to help the appellant in his defence. It was held that evidence conclusively establish that appellant demanded bribe of Rs.150/- from PW1 and after PW1 approached PW10 Deputy Superintendent of CRA 833/02 8 Police, PW10 arranged the trap and handed back MO.1 series of currency notes produced by PW1 before PW10, after administering phenolphthalein powder on the currency notes with instructions to pay to the appellant only if bribe is demanded. On 20/2/1999 appellant demanded the bribe again. PW1 then paid MO.1 currency notes to appellant. It was received by the appellant. Appellant was therefore convicted for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. After hearing the appellant on the question of sentence, she was sentenced to rigorous imprisonment for four years and fine of Rs.25,000/- and in default rigorous imprisonment for one year, for the offence under Section 7 and rigorous imprisonment for four years for the offence CRA 833/02 9 under Sections 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, with a direction that the substantive sentences shall run concurrently. She was granted set off as provided under Section 428 of Code of Criminal Procedure. Appeal is filed challenging the conviction and sentence contending that learned Special Judge did not properly appreciate the evidence and on the evidence conviction is not sustainable. 5. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. 6. Argument of the learned counsel appearing for the appellant is that evidence of PW1 that appellant demanded a bribe should not have been believed on the evidence. It was argued that in Ext.P1 FI statement recorded by CRA 833/02 10 PW10, PW1 has no case that she had submitted an application to the appellant on 4/2/1999 and instead the case was that she filed the application on 8/2/1999 and the subsequent development that application was filed on 4/2/1999 itself shows that she is not a reliable or trustworthy witness. Learned counsel also argued that though PW1 would claim that she had submitted an application on 8/2/1999, there is no case that any demand for bribe was made by the appellant on that day and it is the case that her property was measured by the appellant along with PW4 Village Assistant on 10/2/1999 and PW10 had no case in Ext.P1, that appellant demanded her to arrange a vehicle or that appellant was taken to the spot in a car, such a case was spoken to by PW1 at the time of her examination, which CRA 833/02 11 further shows that she is a unreliable witness. Learned counsel argued that according to PW1 after 10/2/1999 she met appellant on three consecutive days and as still certificate was not given, she met her again on 15/2/1999 at about 4.30 p.m and then the demand for bribe was allegedly made. Learned counsel pointed out that February 13 and 14 of 1999 are Second Saturday and Sunday and therefore, there is no chance for PW1 to go to the Village Office continuously for three days from 10/2/1999. It was argued that though PW1 tried to suppress the incident that took place in the Village Office on 11/2/1999 when her husband went there, her evidence shows that her husband had gone to Village office on 11/2/1999, which corroborates the defence case that there was an incident in the Village office when husband of CRA 833/02 12 PW1 went there and it is out of the said incident the case was foisted. Learned counsel argued that evidence of DW1, the Tahsildar, establishes that he had received a complaint orally over phone from the husband of PW1 about the incident which occurred in the village office and when the Village Officer came to Taluk office, he enquired what transpired in the office and it was informed that husband of PW1 had created a scene and he was directed to go out of the office and in view of the complaint DW1 inspected the Village Office on 19/2/1999, evidenced by his initial in Ext.P8 attendance register and therefore, it is clear that the trap was the result of the said incident and was not genuine. Learned counsel further argued that there cannot be a demand by the appellant for bribe on the evening of CRA 833/02 13 15/2/1999 at the Village Office as appellant was not in the office at that time as proved by the evidence of Dws.2 and 3 and Ext.D7(b) mahazar and in such circumstances, it is to be found that there was no demand for bribe. Learned counsel also argued that the alleged payment of bribe cannot be believed to have received by the appellant, when it could be seen by the other staff members and case that the appellant was holding a file on the right hand and asked PW1 to accompany her and she followed to the staff room and appellant accepted the bribe with her left hand and put it on the chair is most artificial and cannot be believed. Learned counsel also argued that if in fact she had received bribe voluntarily, the entire left hand including the palm would have turned pink because of the CRA 833/02 14 presence of phenolphthalein powder, and found that only the fingers turned pink probablises the defence that PW1 attempted to thrust MO.1 series of currency notes on the left hand of the appellant and when she refused to receive, it fell on the chair. It was argued that if appellant voluntarily received the bribe, she should have concealed the same after folding the currency notes and if so, phenolphthalein powder would have spread over the entire palm and in any case, she would have concealed the currency notes by placing it in the file which was on her left hand or would have concealed it among the records, which was on the table and would never place it on the chair and then sit on it. It was also argued that no phenolphthalein test was conducted on the sari worn by the appellant, which will not be the CRA 833/02 15 case if she had sat on the currency notes smeared with phenolphthalein powder and in such circumstances, on a proper appreciation of the evidence, prosecution case should have been disbelieved. 7. Learned Public Prosecutor submitted that learned Special Judge had opportunity to note the demeanor of each of the witnesses and learned Special Judge elaborately appreciated the evidence in the proper perspective and accepted the evidence of prosecution witnesses and there is no valid reason to take a different view. It was also argued that cogent and convincing reasons were given by the learned Special Judge to believe the evidence of Pws.1 to 3 and to disbelieve the evidence of PW4 and Dws.1 to 3 and on a proper appreciation of evidence, there is no reason to interfere CRA 833/02 16 with the conviction. Following points arise for consideration. 1) Whether appellant demanded bribe from PW1 on 15/2/1999 as alleged by the prosecution ? 2) Whether the appellant demanded bribe from PW1 on 20/2/1999 and PW1 paid it to the appellant and appellant voluntarily received the same ? 3) Whether the conviction is sustainable and if so, whether sentence awarded is reasonable ? 8. The points:- The fact that PW1 had submitted Ext.P2 application before the Tahsildar on 4/2/1999 and as the Tahsildar was not available on that day, PW5, the Deputy Tahsildar sent Ext.P2 to appellant, the Village Officer through PW1, to submit a report and that application was submitted to the Village CRA 833/02 17 Office, Uzhamalackal are not disputed. So also for the purpose of issuing the report and certificates applied for under Ext.P2, along with PW4 appellant inspected the property on 10/2/1999 was not disputed. Case of the prosecution is that still appellant did not issue the certificate and report and so PW1 met her on the evening of 15/2/1999. Appellant then demanded a bribe of Rs.150/- to be paid to her or to be entrusted with PW4. PW1 was unwilling to pay the bribe. PW1 informed PW10 the Deputy Superintendent of Police, who recorded her Ext.P1 statement and registered crime V.C.4/1999 of Vigilance and Anticorruption Bureau, Thiruvananthapuram under Ext.P1(a) FIR. 9. Case of the prosecution is that PW1 met the appellant at the Village Office on the CRA 833/02 18 evening of 15/2/1999. To disprove it and to prove that appellant was not in the office after 3.30 p.m on 15/2/1999, appellant contended that she along with PW4 and Abdul Rasheed, another Village Assistant had gone for attachment of the property of Subramaniya Chettiar pursuant to revenue recovery proceedings initiated and she was there till 5.30 p.m, and therefore, she was not available in the office, when PW1 allegedly met her or the appellant allegedly demanded the bribe. Reliance was placed on Ext.D2(a) and D7(a), which was subsequently called for, as the correctness of Ext.D2(a) was disputed, to prove that appellant was not available in the village office. DW2 was examined to prove Ext.D7 file and DW3 a member of the Panchayath was examined to prove that he was present when the CRA 833/02 19 attachment was effected by the appellant on the evening of 15/2/1999. Learned Special Judge on appreciating the evidence did not rely on the evidence of Dws.2 and 3 or Exts.D7(a) and Ext.D2(a) and found that no reliance could be placed on them and appellant was available at the Village Office. Ext.D1 movement register was also pressed into service by the appellant to prove that as seen in Ext.D1(a) entry, appellant along with PW4, left the office at 3 p.m and therefore, case of PW1 cannot be accepted. Ext.D7 is the original file maintained at Taluk office, Nedumangad in respect of the revenue recovery proceedings initiated against C.Subramanian Chettiyar for realisation of sales tax arrears. As rightly found by the Special Judge, Ext.D7 file shows that notice under Section 34 of Revenue CRA 833/02 20 Recovery Act was issued by the Tahsildar and entrusted to the Village Officer for service. It is dated 29/10/1997. There was no order to attach any property at that time. Ext.D7(a) is the mahazar which was relied on by the appellant. Ext.D2(a) is the office copy of the said mahazar which also contains signature of the witnesses who were present at the time of preparing the mahazar. Though Ext.D2(a) is the copy of Ext.D7(b), except the body of Ext.D7 (b), remaining details of the witnesses are seen written separately and signed. The writings seen in Ext.D2(a) are written in carbon paper. At the same time Ext.D7(b) shows that on the top of the first page, after the name of the place village office, Uzhamalackal the date was seen written as 16/2/1999 and then corrected to 15/2/1999. Learned Special Judge CRA 833/02 21 found that date originally written was 16/2/1999, and then corrected as 15/2/1999. Comparison of Ext.D7(b) with Ext.D2(a) shows that the said details in Ext.D7(b), viz. Village Office, Uzhamalackal is seen in Ext.D2 (a). That writing is similar to the remaining writings in Ext.D2(a) and written using carbon paper. At the same time the date shown as 15/2/1999 in Ext.D7(b), is conspicuously absent in Ext.D2(a). If the date seen in Ext.D7(b) was originally written along with the remaining writings, the date seen in Ext.D7(a) would have definitely been there in Ext.D2(a) also. As it is not there, it is absolutely clear that the date seen in Ext.D7(b), was subsequently written. Similarly, in Ext.D7(b) the last signatory is the appellant. But her signature seen in Ext.D2(a) is in a different ink. More CRA 833/02 22 over, the date 15/2/1999 is seen below her signature in Ext.D7(b), the date is conspicuously absent in Ext.D2(a). Except the two dates seen in Ext.D7(b) namely, the date seen on the right top of the first page and below the signature of the appellant on the bottom of the last page, the body of the mahazar does not disclose when it was prepared. None of the witnesses have shown the date on which they affixed their signature. If a mahazar was prepared in the ordinary course of official act, it would start by revealing the date and time when the officers reached the property, when the attachment started and when it was completed. These are conspicuously absent in Ext.D7(b). 10. Though DW3 was examined to prove that he was absent at the time when the CRA 833/02 23 mahazar was prepared and he deposed that the mahazar was prepared on 15/2/1999 and appellant reached the property at about 3.30 p.m and she was there till 5.30 p.m, on a proper appreciation of his evidence I find that his evidence is not at all trustworthy or reliable. His evidence was properly appreciated by the learned Special Judge and rightly found that it cannot be believed. If we are to believe the evidence of DW3, Subramanian Chettiyar against whom revenue recovery proceedings were initiated, met him on the previous day and disclosed to him that his property will be attached on the next day, ie. on 15/2/1999 and officers will reach there for attachment by 3.30 p.m and requested DW3 to be present there at that time. It is strange to note that the owner of a property would request CRA 833/02 24 a member of Panchayat like DW3 to be present at the time when his property is to be attached. It cannot be believed that Village Officer would furnish advance information, to enable Subramaniya Chettiar to request DW3 to be present at the property to be attached and that too on previous intimation by the Village Officer. No Village Officer will intimate in advance that they will reach the property at a particular day and time, to attach the property. Even if such an intimation is given to the person whose property is to be attached, that person in the ordinary course will never inform a member of the Panchayat and seek his presence at the time of attachment as there is absolutely no necessity for the presence of any witness, in aid of the defaulter, at the time of attachment. The case could have been CRA 833/02 25 appreciated if evidence of DW3 was that his assistance was sought to avoid the attachment. But that is not the case. More over, Ext.D7 file shows that as against the order passed by the Sales Tax Authority, an appeal was filed and that appeal was heard and the order challenged in the appeal was set aside and the matter was remanded by order dated 15/2/1999. If that be the case and having filed an appeal, attempt of Subramanian Chettiyar would ordinarily be prolonged the attachment and not to give publicity of the attachment by requesting the presence of DW3 at the time of attachment. On a proper appreciation of evidence of DW3, as rightly found the learned Special Judge, it can only be found that his evidence cannot be relied on. Perusal of Ext.D7 (b) file shows that though notice under Section CRA 833/02 26 34 of Revenue Recovery proceedings was issued by the Tahsildar on 29/10/1997, an order of attachment as provided under Section 36 of Revenue Recovery Act was passed only on 19/2/1999. File also shows that when the order of Sales Tax Authorities was set aside, a subsequent order was passed by the authorized officer on 26/3/1999, withdrawing the order of attachment effected on 19/2/1999. In such circumstances, it is clear that order of attachment was only on 19/2/1999. Ext.D7 shows that along with mahazar, a report was submitted stating that 1 acre 65 cents in survey No.3730/2-14-1 belonging to the defaulter Subramanian Chettiyar was attached and the location sketch and the notice served on the defaulter were forwarded. If that be so, it is absolutely clear that the mahazar CRA 833/02 27 could have been prepared only after the order of attachment dated 19/2/1999. If so, based on the suspicious dates, now seen on the right hand top portion of the first page of Ext.D7(b) and the date seen below the signature of the appellant in the last page of Ext.D7(b), which are not seen in Ext.D2(a), it cannot be found that appellant was not in the office on the evening of 15/2/1999 after 3.30 p.m. Similarly, Ext.D1(a) entry in Ext.D1 movement register shows that time 3 p.m is recorded on 15/2/1999, when appellant and Abdul Rasheed left the office to Thuravur for effecting attachment. As an order of attachment could be effected only after an order is passed under Section 36 of Revenue Recovery Act and such an order was passed only on 19/2/1999, the entry cannot be relied on as it cannot be genuine. It CRA 833/02 28 is more so, when it is clear from the evidence that the movement register is not properly maintained. On several entries the time is seen recorded. Even if time is seen recorded, it is only when the Village Officer or the Village Assistant left the office. When they returned back to the Village Office is not seen recorded. In such circumstances, based on Ext.D1(a) entry also, it cannot be found that the appellant was not present in the Village Office on the evening of 15/2/1999 to disbelieve the evidence of PW1 that when she met appellant, she demanded bribe from her. 11. Learned counsel argued that apart from the interested version of PW1 there is no other evidence to corroborate the demand made on 15/2/1999. When the evidence of DW1 is that nobody else was present, the factum of CRA 833/02 29 demand, if any made could be proved only by the evidence of PW1. Though PW1 was cross examined at length, learned Special Judge who had opportunity to note the demeanor of the witness, accepted her evidence. On going through the deposition of PW1, I find no reason to disbelieve her evidence. The evidence of PW1 proves that she met