IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 CRL.A.No. 301 of 1999(B) ----------------------- CC.6/1997 of SPL. COURT FOR E.C.ACT CASES, THRISSUR .................... APPELLANT/ACCUSED: ------------------------------- A.S. JANARDHANAN, S/O.SANKARA PILLAI, SUDHASOBHANAM, MEMURI VILLAGE, PAMPAKUDA, MUVATTUPUZHA, FORMER SUB ENGINEER, ELECTRICAL MAJOR SECTION, POTHANICKAD. BY ADV. SRI.S.RAJEEV RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, VACB, ERNAKULAM. (VC 4/95 OF VACB, ERNAKULAM) BY PUBLIC PROSECUTOR, SRI.AMJETH ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.301 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of April 2008 JUDGMENT Appellant was tried before the Enquiry Commissioner and Special Judge, Thrissur for the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act 1988. The trial court found the appellant guilty and he was accordingly convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for three months under Section 7 of the Act. He was further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- under Section 13(2) read with Section 13(1)(d) of the Act. Appellant was directed to undergo rigorous imprisonment for three months in default of payment of fine. It was further directed that the substantive sentence of imprisonment shall run concurrently. The above order of conviction and sentence is under challenge in this appeal. Crl.A.No.301 OF 1999 :: 2 :: 2. Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam had charge sheeted the appellant on the basis of Ext.P2, F.I.Statement given by PW2. In his complaint, PW2 alleged that the accused who had been working as Sub Engineer at Pothanikad Electrical Major Section had demanded a bribe of Rs.2,000/- from him as a reward or gratification for preparing the estimate to provide electric connection for installing of 1.5 H.P. motor for Agricultural purpose in the property belonging to his father Sri.Sivaraman Pillai. According to the complainant, the applications for electric connection to install the motor was submitted in the name of his father on June 6, 1995 at the electricity office. The complainant had taken the accused to the site for inspection. On that occasion, the accused had pointed out certain defects and asked the complainant to ensure that the floor of the pump house was “concreted” and the connection to the pump was “insulated”. The complainant further alleged that after curing the defects he had attempted to contact the accused on several occasions. But he could meet the accused only once. On that day, PW2 was sent Crl.A.No.301 OF 1999 :: 3 :: back with some lame excuses. On September 13, 1995 when the complainant met the accused he was asked to go to the office on October 4, 1995. The complainant took the accused to the site once again. At that time, the accused informed him that three additional electric posts may have to be installed. The accused told the complainant that the estimate would be prepared expeditiously, only if the complainant paid him Rs.2,000/- as bribe. According to the complainant, this demand was made at the Anchelpetty bus stop where the accused was dropped by the complainant after his visit to the site. The complainant paid Rs.500/- that he had with him. The accused told the complainant that he would prepare the estimate, if the balance amount of Rs.1,500/- was also paid. The complainant went to the office of the accused on October 9, 1995 and met the accused. The complainant told him that he was not in a position to pay Rs.1,500/- more as demanded, but he may be able to pay only Rs.500/- on October 11, 1995. The complainant approached the Dy.S.P., Vigilance thereafter, in the afternoon on October 10, 1995 and lodged Ext.P2 complaint. The Dy.S.P. asked the Crl.A.No.301 OF 1999 :: 4 :: complainant to go to the Vigilance Office on the next day. The trap was prepared by the Dy.S.P. in the presence of witnesses and on the next day viz. October 11, 1995 it was carried out successfully. The accused was caught red handed. The investigation was completed thereafter and the charge sheet was laid before the court. 3. The prosecution had examined PWs 1 to 15 and marked Exts.P1 to P12(a) and M.O.I to VI on its side. DW1 was examined on the side of the defence. The trial court, after a careful evaluation of the oral and documentary evidence, came to the conclusion that the prosecution had succeeded in proving the charge against the appellant. 4. PW1 proved Ext.P1 order of sanction to prosecute the appellant. PW2, the complainant deposed in terms of the averments made by him in Ext.P2 complaint. He stated that he had gone to the Vigilance Office at the appointed time on October 11, 1995 as instructed by the Dy.S.P. At the time of his arrival at the Vigilance Office, the Dy.S.P.(PW15), PW3 and other Police Officers were present. He handed over Rs.500/- (five notes of Crl.A.No.301 OF 1999 :: 5 :: hundred rupee each) to the Dy.S.P. who explained to him about the phenolphthalein test. Phenolphthalein powder was smeared on the notes by the Constable as instructed by PW15. The numbers of the notes were noted down and an identifying mark as ‘v’ was put on the water mark on the notes by PW15. It was ensured by PW15 that the complainant had no other currency notes in his pocket. PW15 instructed the complainant that he should hand over the notes to the accused only if he demanded the same. PW2 had spoken about the other formalities in preparation of the trap at the office of the Dy.S.P. In his deposition he further stated that he had gone to the office of the accused along with PW3, 11, 12, 15 and others at about 10.30. He went inside the room of the accused and as he entered the room, the accused asked PW2 what happened to the money he had asked for. At that time, PW2 took out the Phenolphthalein smeared notes and handed them over to the accused who accepted them with his right hand and put it in the drawer on the left hand side of the table. PW2 gave signal to PW11 who in turn passed on the signal to PW12 and to PW15 by turn. PW2 stated Crl.A.No.301 OF 1999 :: 6 :: that PW3, 11, 12 and 15 immediately came to the office of the accused. PW2 further spoke about the recovery of the phenolphthalein smeared notes (M.O.1 series) from the drawer of the table used by the accused. PW3 in his evidence stated that he was working as Senior Superintendent in the District Supply Office, Ernakulam. He had received Ext.P4 communication from the District Collector to go to the Vigilance Office on October 11, 1995. Accordingly, he had gone and met PW15 who arranged the trap referred to above. PW3 further stated that PW15 gave instructions to him as to what had to be done after reaching the office of the accused and on receipt of signal from PW2. This witness also spoke about the other formalities which were completed in the office of the Dy.S.P. prior to the visit to the office of the accused. He also stated that the 500 rupee notes were recovered by him from the drawer of the table. He also spoke about the Phenolphthalein test conducted at the office of the accused after recovery of the notes from the drawer. PWs11 and 12 also spoke about the role played by them in the successful completion of the trap. PW15, the Investigating Officer also Crl.A.No.301 OF 1999 :: 7 :: spoke about the registration of the crime pursuant to the complaint lodged by PW2 and also the trap arranged by him on the morning in his office before the visit to the office of the accused. He also gave the detailed description about the recovery of the notes from the drawer of the table. He stated that he had identified himself to the accused and asked him whether he had accepted a bribe of Rs.500 from PW2. According to PW15, the accused admitted that he had received the bribe. Thereafter, the money was recovered from the drawer of the table and the other formalities were completed in the presence of PWs2, 3, 11, 12 etc. In short, the prosecution had established that the accused, who was a public servant at the relevant point of time, demanded and accepted bribe from PW2 to provide electric connection for installing 1.5 HP motor in his father’s pump house. 5. It is contended by Sri.Rajeev, learned counsel for the appellant, that the court below was not justified in placing reliance on the interested versions given by PW2 and 10. He points out that PW10 had admitted that he had to spend Rs.3,500/- instead of Rs.1,000/- for obtaining electric connection Crl.A.No.301 OF 1999 :: 8 :: in his property because of the insistence of the accused that he should install an additional post. This according to the accused had infuriated PW10 who was instrumental in instigating PW2 to lodge Ext.P2 complaint against him. It is further contended by the learned counsel that the evidence of PW3 and 11 would further reveal the inconsistencies and incongruities in the prosecution case. Learned counsel has taken me through the depositions of these two witnesses and also to Ext.P7, plan of the building. According to the learned counsel, the evidence on record clearly exposed the falsity of the prosecution case in as much as they could not have witnessed PW2 handing over the money to the accused. 6. I have perused Exts.P7 and P8 plans. It is on record that the office of the Electrical Sub Section was on the first floor of the building. Ext.P7, Sketch shows that the distance between the upper landing of the staircase and the door of the office of the accused is hardly 3.75 meters. According to PW2, after the accused accepted the bribe he had given the signal as instructed by PW15. According to PWs3 and 11, they had stood outside the Crl.A.No.301 OF 1999 :: 9 :: office room of the accused while PW2 went inside. These witnesses stated that they had seen PW2 taking out the notes from his pocket and handing them over to the accused. As soon as the accused had accepted the money, PW2 had given the signal. At that time, PW2 and 11 had entered the room. PW2 had relayed the signal to PW11 which in turn was relayed to PW12. According to the learned counsel, it was improbable that PW3 and 11 would have witnessed the incident standing outside the room. Learned counsel makes an attempt to rely on the suggestion made by the learned counsel for the accused in the course of the cross examination of the witnesses that an almirah placed near the window would have blocked any view from outside. But as rightly noticed by the court below the evidence of these witnesses coupled with the sketch and the plan clearly established that the witnesses had ample opportunity to witness the operation. 7. Having carefully perused the evidence of these witnesses and also the relevant materials on record, I do not find any reason to disbelieve their versions. The other contention raised by the Crl.A.No.301 OF 1999 :: 10 :: learned counsel is that the court below had overlooked the admission made by PW7 that another Sub Engineer namely, Sri.Jose Thomas was in charge of the relevant file with effect from August 1, 1995 and therefore, the accused had nothing to do with the preparation of estimate for giving electric connection to PW2. It is pertinent to note that on Ext.P3 application, PW7 had put a note instructing the accused to prepare the estimate. It is true that the note was made by PW7 on June 6, 1995. The case of the accused appears to be that after August 1, 1995 he was not supposed to have anything to do on Ext.P3 application, since another Sub Engineer was put in charge of the applications coming under the jurisdiction of the area concerned. PW7 had admitted that after August 1, 1995 the other Sub Engineer was in charge. But he had also conceded that if any specific instruction had been issued to a particular officer to prepare the estimate, the said officer could have carried out the instruction and prepared the estimate. In this context, it may be noticed that the specific case of PW2 was that he had taken the accused to the site after curing the defect as pointed out by the accused on October Crl.A.No.301 OF 1999 :: 11 :: 4, 1995. On that occasion the accused had specifically told PW2 that he would prepare the estimate expeditiously if only he was paid Rs.2,000/-. At that time, PW2 had paid Rs.500/- to the accused. In the course of the cross examination of PW2, there was not even a suggestion that the accused had not been taken to the site on October 2, 1995 or that he had not received Rs.500/- from the complainant as alleged by him on that day. Ext.P3 file clearly indicates that it had been referred to the accused by his superior officer (PW7). Obviously therefore the accused had been in charge of the file as submitted by the learned Public Prosecutor. Moreover, there was nothing on record to show that the other Sub Engineer had taken over the file from the accused. 8. Having regard to the totality of the facts and circumstances and also the materials available on record, particularly the instruction given in the note by PW7 on Ext.P3 file to the accused to prepare the estimate, I do not find any reason to disbelieve the version given by PW7 to that effect. It is true that PW7 had admitted in the course of cross examination that he could not say whether the accused had done anything on Crl.A.No.301 OF 1999 :: 12 :: Ext.P3 after August 1, 1995. But still I am persuaded to accept the prosecution case that the accused continued to be in charge of Ext.P3 application even after August 1, 1995. Learned counsel has strenuously contended the non examination of the other Sub Engineer was fatal to the prosecution case. I am not able to accept the above contention, yet again for the reasons stated above. 9. It is further contended by the learned counsel that as regards the demand for bribe allegedly made by the accused, the prosecution had not adduced any corroborative evidence to support the version given by PW2. I find no reason why the evidence given by PW2 should be disbelieved in this regard. In my view, the evidence of PW2 is totally trustworthy and credible. Moreover, apart from the bald suggestion made by the accused that PW10 had instigated PW2 in foisting the case against the accused in the course of cross examination, I do not find any reason to disbelieve PW2 or PW10 in this regard. I have carefully perused the depositions of all the witnesses and the entire documents produced on the side of the Crl.A.No.301 OF 1999 :: 13 :: prosecution. As mentioned earlier, the evidence of PW2, 3, 11, 12, and 15 had clinchingly established the prosecution case. The testimonies of these witnesses clearly proved the charge against the accused. The court below had evaluated the entire oral and documentary evidence meticulously and found the accused guilty. I do not find any reason to take a different view. There is no merit in any of the contention raised by the appellant. Therefore, the order of conviction and sentence is liable to be confirmed. I do so. Appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes