IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 CRL.A.No. 1095 of 2001() ----------------------------------- CC.37/1999 of ENQUIRY COMMISSIONER & SPECIAL COURT, KOZHIKODE .................... APPELLANT/ACCUSED: ---------------------------------- K. MOHAMMED, S/O.MAMMED KUTTY, ASSISTANT EXECUTIVE ENGINEER, KATTAYADAN HOUSE, THUVAKKAD, PANNIPARA P.O., EDAVANNA VIA., MALAPPURAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.ANIL K.MOHAMMED, SRI.SUJESH MENON V.B., SRI.JOSEPH P.ALEX, SRI.SHYAM ARAVIND, SRI.T.ANIL KUMAR. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON 26/08/2011 DELIVERED THE FOLLOWING: rs N.K.BALAKRISHNAN, J. --------------------------------- Crl.A.No.1095 of 2001 --------------------------------- Dated this the 26th day of August 2011 J U D G M E N T The accused who was convicted by Enquiry Commissioner and Special Judge, Kozhikode for offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 is the appellant. He was sentenced to undergo Rigorous Imprisonment for two years each and to pay fine of Rs.10,000/- (Rupees Ten Thousand only) each with a default sentence of R.I. for one year each. This appeal is directed against the said conviction and sentence. 2. The appellant was the Assistant Executive Engineer, KSEB, Major Electrical Section, Beypore, Kozhikode. The case of the prosecution is : PW1 was the owner of a workshop where wooden reapers were manufactured. On 15.7.1997, the accused and his officials Crl.A.No.1095 of 2001 -: 2 :- conducted inspection of that workshop. They found illegal drawing of electricity from the nearby house of PW16. The mahazar, Ext.A27(a) was prepared for that purpose. Subsequently, Ext.P27(b) notice was sent to PW1 informing him that a sum of Rs.23,760/- would be imposed as penalty. When PW1 approached the accused on 6.10.1997, he demanded a sum of Rs.5,000/- as bribe in order to reduce the fine/penalty to Rs.4,000/-. Though reluctantly, he agreed to pay the amount demanded in five instalments. Thereafter, he went to the office of the Dy.S.P., Vigilance and Anti Corruption Bureau and informed the Dy.S.P. On 8.10.1997. The complaint orally given by him to the Dy.S.P. was reduced to writing and based on that complaint, F.I.R. was registered. As directed by the Dy.S.P. PWs.3 and 4, Tahsildars were brought to the office of the Dy.S.P. to lay the trap. MO1 series six currency notes (5 currency notes of the denomination of Rs.100/- and another currency note of the denomination of Rs.500/-) were given by PW1 to the Crl.A.No.1095 of 2001 -: 3 :- Dy.S.P. Those currency notes were treated/smeared with phenolphthalein powder. Thereafter, phenolphthalein test was demonstrated by PW20 (Dy.S.P.) to PWs.3 and 4 and also to the complainant (PW1). MO2 is the bottle which contained colourless lime water which turned pink while the test was demonstrated. PW2 the companion of PW1 was also present. Instructions were given by PW20 to PWs.1, 2, 3 and 4 as to what should be done. They went to the office at about Noon. The accused was not in the office at that time and he reached the office only at 2.45 PM. Then PW1 got into the office room of the accused. As demanded, PW1 paid Rs.1,000/- (MO1 currency notes) to the accused, who received it and put it in the drawer of his office table. PW1, then showed the signal indicating acceptance of bribe money by the accused. The signal was relayed to PW20 and also to PWs.3 and 4. They entered the office room of the accused while the accused was engaged in conversation with PW1. PW20 introduced himself as Dy.S.P., Vigilance Crl.A.No.1095 of 2001 -: 4 :- and Anti Corruption Bureau, Kozhikode. He also introduced PW3 and PW4 the Tahsildars. The accused was then seen vigorously rubbing his fingers on the table evidently to erase the phenolphthalein traces in his hands/fingers. He was asked not to rub his fingers. Since he continued to do, he had to be physically prevented from further rubbing on the table by holding his arms. When the accused was asked as to where the currency notes were put, the accused showed signal by his eyes/by body language indicating that the currency notes were in the drawer of his office table. When the drawer was opened, the currency notes were found in it. Thereafter, the accused was asked to dip his fingers in the lime water and the same turned to pink in colour. It was separately closed, packed, sealed and labelled then and there in the presence of witnesses upon which the witnesses put their signatures. The edges of MO1 currency notes were also dipped in lime water which also showed positive result, namely, the colourless liquid Crl.A.No.1095 of 2001 -: 5 :- turned pink. The dipped portion of the currency notes also showed pink colour. That lime water which turned pink in colour, taken in a bottle was also closed, packed, sealed and labelled in the presence of the witnesses. A detailed mahazar was prepared by PW20 narrating what transpired and also describing therein the seizure of all the material objects mentioned above. The accused was arrested and produced before the court. The investigation was thereafter conducted by PW21 and PW19. After obtaining sanction, the charge sheet was laid by PW18, the successor in office of PW20 alleging offences under Sections 7 and 13(1)(d) read with Section 13(2) of P.C.Act, 1988. 3. P.W.1 to 21 were examined and Exts.P1 to P41 were marked. M.O.1 to M.O.6(a) were marked. No witness was examined on the side of the defence. The accused made a total denial and contended that somebody had cheated him and that is innocent in the matter. 4. The learned Special Judge after considering the Crl.A.No.1095 of 2001 -: 6 :- entire evidence found the accused guilty, convicted and sentenced as mentioned above. 5. Heard Mr.B.Raman Pillai, learned counsel for the appellant and Mr.S.U.Nazar, learned Public Prosecutor. 6. The following points arise for consideration: (i)Was there a valid sanction for prosecuting the accused? (ii)Whether the accused had demanded Rs.5,000/- from P.W.1 as a reward of gratification for reducing the penalty for drawing unauthorised electric connection to his workshop and whether the accused accepted Rs.1000/- from P.W.1 on 4.8.1997 at his office as part of the amount demanded by him as bribe? (iii)Whether pursuant to the demand mentioned earlier the accused obtained from P.W.1 Rs.1000/- at about 3.45 PM on 8.10.1997 at his office for reducing the penalty as stated above? Crl.A.No.1095 of 2001 -: 7 :- (iv)Whether the conviction and sentence passed against the appellant are liable to be set aside on any of the grounds putforward by him? Point No.1 7. Ext.P30 is the sanction order issued by the then Chief Engineer who was examined as P.W.12 who was competent to issue the sanction order. The accused was then working as Assistant Executive Engineer of Electrical Major Section, Beypore. These facts are not disputed by the accused. The competency of P.W.12 to issue Ext.P30 order was also not challenged. The court below has accepted that evidence and found that there was valid sanction as required under Section 19 of the P.C.Act, 1988. The finding so entered by the court below is confirmed. Point No.2 8. P.W.1, the complainant, P.W.2 his friend and P.W.16, the brother of P.W.1 did not support the prosecution. Similarly, P.W.17 who was alleged to have paid Crl.A.No.1095 of 2001 -: 8 :- Rs.1000/- on behalf of P.W.1 also did not support the prosecution. The learned counsel for the accused would submit that there is no evidence to show that the accused had made any demand at any point of time nor is there any acceptable evidence to show that the workshop which was conducted by P.W.1 was inspected by the accused. It is also contended by the defence that P.W.16, the elder brother of P.W.1 was the owner of the residential building 'Safreena Manzil' from which unauthorised electric connection was taken to the workshop which was run by P.W.1. As such according to the defence, there was no occasion for P.W.1 to complain regarding the same. In other words, according to the defence, the possibility of the accused demanding any amount as gratification from P.W.1 cannot be accepted at all. There is no merit in that contention. The workshop was admittedly run by P.W.1 who is the brother of P.W.16. Since it was P.W.1 who unauthorisedly drew electric connection to his workshop and since the order imposing penalty would Crl.A.No.1095 of 2001 -: 9 :- affect the motors being used in that workshop, certainly it was P.W.1 who was to avoid the action taken in the matter. Therefore, the contention that since the notice was issued to P.W.16, the owner of the building and so the case of the prosecution that bribe was demanded from P.W.1 is unsustainable, is devoid of any merit. 9. It was also contended that P.W.11 and P.W.13, the officials of the K.S.E.B. who actually conducted inspection have stated that the accused actually did not conduct inspection. But the learned Public Prosecutor would submit that every effort was made by the subordinates of the accused to say that the accused was not there but even from their evidence it could be seen that the accused was actually in the jeep when the inspection was conducted by P.Ws.11 and 13. That apart, as rightly pointed out by the learned Public Prosecutor, it is not disputed that based on Ext.P27(a), the report of inspection prepared by the officials, notice, Ext.P27(b), was issued by the accused. The Crl.A.No.1095 of 2001 -: 10 :- accused contends that ever so many papers would be placed before him by the staff of the Section and he being the head of that office used to sign and as such simply because Ext.P27(b) was signed by him, it cannot be held that he was present at the time of inspection or that the notice was issued to P.W.16 with evil design to demand bribe from P.W.1 or P.W.16. It is pertinent to note that the notice admittedly does not show Rs.23,760/- as the penalty payable. The case of the prosecution is that the accused demanded bribe and ultimately the agreement or understanding was to the effect that the accused should be paid Rs.5000/- in which case the penalty would be reduced to Rs.4000/-. Therefore, conveniently the penalty amount was not noted in Ext.P27(b). The contention that it was to be subsequently calculated by the section, after hearing the person concerned and that was why the amount was not mentioned does not inspire confidence in the mind of the court. Crl.A.No.1095 of 2001 -: 11 :- 10. Ext. P1 is the First Information Statement of PW1 recorded by PW20, the Dy.S.P. PW1 did not support the prosecution and hence after seeking permission of the court, he was cross-examined by the learned Public Prosecutor. It was admitted by him that Ext.P1 was signed by him and that it was signed after the statement was read and found correct. It was also admitted by him that his workshop was inspected by the officials who came from KSEB and thereafter he stopped the working of the motor used in that workshop. It was further admitted that on 08/10/97, after Ext.P1 statement was given by him, Rs.1000/- was handed over by him to PW20 and that all those currency notes were smeared with phinolphthalein powder and thereafter those notes were entrusted to him. It was also admitted by him that before entrusting to him those notes (treated with phenolphthalein powder), certain tests were demonstrated. Further fact that it was along with PW2, he went to the office of PW20 and that after he Crl.A.No.1095 of 2001 -: 12 :- was entrusted with the currency notes as mentioned above he and PW2 went to the office of the accused on a scooter was admitted by him. But thereafter he gave a different version stating that when he reached the office of the accused, he was worried and so he entrusted the currency notes to PW2. His further statement was that PW2 asked him that when accused was coming he (PW1) should hold the hands of the accused and tell the matter, evidently a story invented by the defence. The defence also tried to build-up a case that it was PW2 who went to the office of the accused. But during cross examination it was admitted by PW1 that when he was talking with the accused from the office of the accused, PW20 and other officers reached there. It was also admitted by PW1 that from the office of PW20, he was instructed by PW20 as to the signal to be given when the accused accepted the bribe money. The story told by PW1 that he was asked by PW2 to hold the hands of the accused and he had in fact entrusted the Crl.A.No.1095 of 2001 -: 13 :- money to PW2 stands belied by PW2 even though he also turned hostile to the prosecution. PW2 has stated that he did not even go to the office of the accused. At another place it was admitted by PW1 that he had entrusted the currency notes to PW20 from his office (office of PW20) and when those currency notes were returned to him by PW20, after it was smeared with the powder, other officers were also there, though he says that he doesn't know whether they were the Tahasildars. PW1 had studied up to 10th standard. It is evident that this witness was won over by the accused. The learned Public Prosecutor would submit that the suggestive questions put by the defence to PW1 and the answers given by him would show that PW1 was not only won over by the accused but was doctored to give a distorted version that as directed by PW2 he held the hands of the accused and requested him to do the favour as requested. How could such suggestion be put to PW1 unless PW1 and PW2 were tutored in that line by the Crl.A.No.1095 of 2001 -: 14 :- defence, is the pertinent question posed by the learned Public Prosecutor. When that suggestive question was put, the accused readily answered that it is correct. 11. Learned Public Prosecutor submits that 'a fact' can be proved not only be direct evidence but also by circumstantial evidence. Therefore, simply because PW1 betrayed the prosecution with regard to the demand made by the accused and the handing-over of the currency notes to the accused the case cannot be thrown over board and that from the totality of the evidence and circumstances, it can be found without any iota of doubt that the accused demanded and accepted Rs.1,000/- from PW1. 12. PW20, the Dy.S.P. has given evidence that Ext.P1, the F.I.Statement was given by PW1 and it was recorded by him and that thereafter preliminary enquiry was conducted to discern the truthfulness of the complaint and after ascertaining the correctness, the F.I.R. was registered. Evidently it was done by PW20 in view of the directions Crl.A.No.1095 of 2001 -: 15 :- contained in the judgment of the Apex Court in Sirajuddeen's case [AIR 1971 SC 520]. It was further stated by PW20 that Ext.P1 contains the signature of PW1. That is not disputed by the defence also. It was stated by PW1 that PWs.3 and 4 reached his office at about 2.45 PM on the same day and in their presence also PW1 told about his complaint and thereafter the contents of Ext.P1 were read over to PW3 and PW4. That fact was also not effectively challenged by the defence. Therefore, the learned Public Prosecutor is perfectly right in his submission that Ext.P1 was the statement given by PW1 and that it was signed by PW1 in the presence of PW20. That was signed by PW20 and it was based on that, the F.I.R. was registered by him. So much so, the contention that the complaint (Ext.P1) was not given by PW1 must fall to the ground. 13. It is also in evidence that when PWs.3 and 4 appeared before PW20, the phenolphthalein test was Crl.A.No.1095 of 2001 -: 16 :- demonstrated. Mahazar was prepared for that purpose. The evidence would further show that six currency notes which were smeared with phenolphthalein powder were put in the pocket of PW1. The fact that phenolphthalein test was demonstrated and thereafter the currency notes were entrusted to PW1 was corroborated by PWs.3 and 4. Therefore, that part also stood proved to the hilt. PW6 is a police constable who was present in the office of PW20 while phenolphthalein test was demonstrated. He had also accompanied PW20 and others to the office of the accused. His evidence would show that as instructed by PW20 he stood at a particular place so as to receive the signal relayed by PW20 and to relay the same to the other police officials so as to ultimately reach the same to PW20. 14. The evidence given by PWs.1, 3, 4 and 6 would show that they proceeded to the office of the accused at about 1.45 PM. They reached near the office of the accused at about 2.45 PM. Admittedly the accused was not in his Crl.A.No.1095 of 2001 -: 17 :- office at that time. He came back only at about 3.40 PM. According to PW20 he received the signal at about 3.45 PM indicating the acceptance of the tainted currency notes by the accused. When he received the signal he along with PWs.3, 4 and others went to the office. When they entered the office room of the accused they saw PW1 and accused talking each other. The evidence given by PW1 that he introduced himself as Dy.S.P., VACB and that he also introduced PWs.3 and 4 as the Tahsildars was not properly assailed by the defence. That evidence was rightly accepted by the learned Spl. Judge. It was stated by PW20 that when he asked the accused whether he had received bribe he did not reply orally but remained silent with a drooping head. It was stated by PW20, “പത ഒന മണ തത തലയ ത ഴ മമശപ റ ഫയലല  കവരല ള തമല ഉരസത മണയരന.” The evidence given by PWs.3 and 4 is also to the effect that after they entered the office of the accused when he was asked as to whether he had received Crl.A.No.1095 of 2001 -: 18 :- the bribe money, the accused was seen rubbing both his hands together and also rubbing on the office table. That evidence corroborates the evidence given by PW20. In fact, the said conduct of the accused was practically admitted by the accused also. But it was tried to be explained stating that he did so as he was so dazed or puzzled. That explanation is found to be totally unacceptable. Had he not received currency notes and put it in the drawer of his office table, there was no necessity for him to get perplexed when the DYSP entered the room. 15. It is also important to note that when the accused was asked where he had kept the currency notes received from PW1, he only showed gestures indicating that the money was kept by him in the drawer of his office table; that is, he turned his face and pointed the drawer of the table by his eyes. That evidence given by PW1 is fully supported by PWs. 3 and 4. That evidence also could not be controverted by the defence. That is another circumstance Crl.A.No.1095 of 2001 -: 19 :- which was highlighted by the prosecution. Sri.S.U.Nazar, the learned Public Prosecutor would submit that when PW20 asked PW1 as to where the accused had kept the money then PW1 told him that it was kept by the accused in the drawer of the table. That admission or statement was part of the same transaction; namely, it was so proximate in time and place, having continuity of action and was stated by PW1 to PW20 in the presence of the accused and so it cannot be brushed aside as hearsay evidence. That part of the statement gets confirmed by the subsequent fact that the six currency notes were seen in the drawer of the table when PW3 opened the drawer as directed by PW20. Those currency notes were seen on the diary of the accused. It was found that those six currency notes bore the numbers as noted in Ext.P4, the entrustment mahazar prepared by PW20 when those currency notes were entrusted to PW1 after those notes were smeared with phenolphthalein powder. Therefore, it is conclusively proved that the six Crl.A.No.1095 of 2001 -: 20 :- currency notes which were at first given by PW1 to PW20 were smeared with phenolphthalein powder and those currency notes were entrusted to PW1 to be given to the accused on demand. Those currency notes were recovered from the drawer of the office table of the accused. 16. The next other circumstance to be proved by the prosecution is whether the accused had actually received those currency notes. The fact that the accused was found jittering and rubbing his hands together and also rubbing on the table as mentioned earlier was a relevant conduct to discern the mind of the accused, since it was done by the accused to erase the traces of phenolphthalein powder from his hands (from his fingers and palm). The further unimpeachable point is that when the accused was again trying to rub his fingers on his table he had to be physically prevented from doing so by holding the wrist of the hands of the accused. That evidence given by PW20 was well corroborated by PWs.3 and 4. Crl.A.No.1095 of 2001 -: 21 :- 17. The evidence given by the aforesaid witnesses would further prove that thereafter the accused was asked to dip his fingers in the colourless lime water and then the lime water turned to pink in colour. That was indicative of the fact that his fingers happened to have contacted with phenolphthalein powder. The evidence would show that the lime water so turned pink in colour was taken in a bottle. It was closed, packed, sealed and labelled then and there and on that label the signatures of PWs.3 and 4 and also of the accused were obtained. 18. It was vehemently argued by the learned counsel for the accused that at the time of trial, the lime water in MO4 was not pink in colour. PW20 would say that it is slightly pink in colour but other witnesses would say that it is colourless. But the evidence given by PWs.1 and 3 is categoric and definite that when the accused dipped with his fingers it turned pink in colour and that was the liquid taken as MO4. It is needless to say that slight pink colour Crl.A.No.1095 of 2001 -: 22 :- would get faded within a few months. The trial took place more than three years after the incident. Hence there was possibility of getting the pink colour faded. In the light of the unassailable evidence that MO4 the lime water was pink in colour when the accused dipped his fingers would prove to the hilt that the currency notes were actually accepted by the accused and he put the same in the drawer of his office table. 19. The learned counsel for the accused wanted to contend that PW2 must have put the currency notes in the drawer of the table. PW2 has completely turned hostile. As observed earlier, the evidence given by PW1 that he had entrusted the currency notes to PW2 after he reached the office of the accused was denied by PW2. Similarly, the other contention that as directed by PW2, PW1 caught the hands of the accused was also denied by PW2. That theory was rightly rejected by the learned Special Judge. 20. It was argued at length that there