IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRL.A.No.176 of 2002 (A) ------------------------------ CC.27/2000 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT: ACCUSED: -------------------------- P.V.SUBRAMONIAN (ASSISTANT ENGINEER, KODUNGALLOOR), PERINGATTU HOUSE, LOKAMATHESWARAM(N), KODUNGALLOOR. BY ADV. SRI.B.RAMAN PILLAI RESPONDENT: COMPLAINANT: ----------------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.176 of 2002 ------------------------------------------------ Dated this the 8th day of January, 2008 JUDGMENT Accused convicted for offence under Sections 7 and 13 (1) (d) read with Section 13 (2) of the P.C. Act, 1988 vide judgment of the Enquiry Commissioner and Special Judge, Thrissur dt.27/02/02 in C.C.27/2000 is the appellant. The case was charge sheeted by Dy. S.P. of Police (VACB), Thrissur on completion of investigation after laying a trap consequent on registration of Ext.P2(a) FIR recording Ext.P2 F.I.statement given by PW2. 2. The prosecution case is that the accused was working as an Assistant Engineer in the Block Development Office, Kodungalloor and while so he demanded an amount of Rs.5,000/- as illegal gratification from PW2/the Chairman of the Beneficiary Committee for the execution of the work of improvement Crl. Appeal No.176 of 2002 -2- of Anatt road under the Employment Assurance Scheme in Ward No.12 of Methala Panchayat under Kodungalloor block on 29/04/99 at his residence; that on getting assurance for payment of the bribe he measured the work on 30/04/99 and in pursuance of the demand accepted from PW2 an amount of Rs.4,000/- on 02/05/1999 at 7.00 p.m at his residence (at the residence of the accused) and he repeated demand for the balance amount of Rs.1,000/- on 03/05/1999 at 7.30 p.m at his residence when PW2 met him and at about 1.40 p.m on 04/05/1999 he reiterated the demand and accepted Rs.1,000/- as illegal gratification from PW2 at the Varanda of his office and thereby committed offences as aforestated. 3. According to the prosecution, on 04/05/1999 trap was laid and the accused was got red handed and the decoy currency notes were seized from the drawer of the table of Crl. Appeal No.176 of 2002 -3- the appellant. The solution test showed positive result on the hands of the accused and he was arrested at the spot at about 4.30 p.m on 04/05/99. 4. On completion of the investigation, Final Report was laid in the court below by the Dy. S. P. The court below issued summons to the appellant taking cognizance of the offence. On appearance of the appellant in the court below, he was furnished with copies of all relevant records in the case; preliminary arguments were heard; charge was framed and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. On the side of the prosecution PWs.1 to 9 were examined and Exts.P1 to P12 were marked and MOs.1 to 7 were got identified. 5. On the prosecution closing their evidence, the appellant/accused was questioned Crl. Appeal No.176 of 2002 -4- under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He has denied the alleged demand of Rs.8,000/- and of reducing it to Rs.5,000/- as alleged by the prosecution. He has repudiated the evidence given by PW2 that an amount of Rs.4,000/- was paid to him as illegal gratification on 02/05/1999 and a further amount of Rs.1,000/- was demanded and received by him on 04/05/1999. According to him, on 04/05/1999 at about 1.30 p.m. he was proceeding to the room of the Block Development Officer to attend a telephone call and at the Varanda of the office he saw PW2 and abruptly he gave a shake hand to him expressing gratitude for bill having been prepared without any delay and further stating that he (PW2) wanted to pay some amount to the B.D.O and attempted to Crl. Appeal No.176 of 2002 -5- place in his hands some cash on the premise that he having no acquaintance with the B.D.O it has to be passed on to the B.D.O. According to him, thereupon he refused and advised him that he can directly give it to the BDO and then, PW2 desisted from his attempt to place the cash in his hand. According to the appellant, he then proceeded to attend the phone call and having attended the phone call, he came back and sat on his seat and immediately three to five police officials abruptly entered the room and questioned him as to where is the currency notes received by him as bribe; that he told them that the amount attempted to be entrusted with him was returned; that thereafter the Vigilance officials opened his drawer and took cash from within the drawer and it is only then that he knew that there was cash placed in the drawer. He has no dispute however, regarding the Crl. Appeal No.176 of 2002 -6- subsequent trap formalities conducted by the Vigilance Officials. However, according to him, a committee had been formed under the Employment Assurance Scheme for execution of work of Anatt road in Methala Panchayat while he was working in Kodungalloor Block; that he also partook in the said committee wherein PW3 was elected as the Convener; that later, as per Government order PW2 was made the Chairman of the Committee (wrongly stated as Rajesh in the statement of the accused); that the Chairman is having no responsibility for the execution of the work; that even at the time of entrustment of the work with the Convener Rajesh/PW3, he suggested that the work may be entrusted to somebody who is familiarised with the work, as PW3 was not familiar in doing tarring work; that however, his suggestion was not approved; that for that reason however, they became inimical towards him; that PW3 Crl. Appeal No.176 of 2002 -7- collected metal at site and demanded to have it measured but on measurement it was found that it was only half the quantity and he was not prepared to accept that as full quantity as requested that it was, subsequently, in three or four instalments that the materials were collected at site to which the people of the locality were witnesses; that the people of the locality warned him that if the work is not got properly executed steps will be caused to be taken against him and therefore, he was implementing the execution of work strictly which was not liked by PWs.2 and 3 and that paved the way for aggravation of animosity they developed towards him; that the tarring was completed on 27/04/1999 and thereafter, metal powder had to be spread over the tarred road which would take another two days that on the 30th he inspected the work and measured it whereupon PW3 was present at site and he Crl. Appeal No.176 of 2002 -8- signed the measurement book accepting the measurements; that the work was got check measured by the Executive Engineer of D.R.D.A on 02/05/99 that the bill could be prepared only thereafter, that in the forenoon on 03/05/99 the bill was prepared and was entrusted with PW2 and that it is thereafter, on 04/05/1999 that the occurrence has taken place. According to him, about four months back, the work of construction of side walls for a well in the ward of the Panchayat President was caused to be stopped half way and there was discussion in the Panchayat with respect to that and he was scolded by the Panchayat President R.P.Menon who is a Marxist party leader; that PW3 is also a member of the Marxist party and the Panchayat took a decision to get him transferred; and that this case is foisted only as a part of their attempt in getting him transferred and that in Crl. Appeal No.176 of 2002 -9- any event, he had no role at all to play in the matter of disbursement of amounts due under the work to PW3 ever after 30/04/1999. 6. On the defence side DWs.1 and 2 were examined and Exts.D1 to D3(b) were marked. The court below considered the case in the light of the evidence so adduced; found that the charge against the appellant is proved; convicted him for the offence under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988; and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for one year for offence under Section 7 of the P.C. Act and to undergo rigorous imprisonment for a term of four years for offence under Section 13 (1) (d) read with Section 13(2) of the P.C. Act, 1988 with benefit of concurrency and right of set off. Crl. Appeal No.176 of 2002 -10- Hence, this appeal by the aggrieved accused. 7. It is vehemently contended before me by the learned counsel for the appellant that the prosecution case on the whole, was being accepted by the court below despite the fact that there are glaring inconsistencies which highlight the improbability in the prosecution case and that was not properly considered by the court below which has resulted in the conviction of the appellant/accused for offence as already stated. He has taken me through the entire evidence in the case. Being a court of first appeal this Court has necessarily to consider the case on merits re- appreciating the entire evidence. 8. The counsel for the appellant has no case that Ext.P1 sanction issued by PW1 under Section 19 of the P.C. Act is not proper or that PW1 is not competent to issue sanction. Hence, what remains for consideration is only Crl. Appeal No.176 of 2002 -11- appreciation of the evidence in the case as to whether the offence alleged stands made out against the appellant on the evidence in the case. 9. PW3 is the Convener and nominee of the work of re-tarring of Anatt Road in Methala Panchayat. PW2 is the Chairman of the Beneficiary Committee and he has no responsibility to execute the work and the rights and liabilities as per the agreement is for PW3 only. The work is for an amount of Rs.1,50,000/-. The work was completed on 27/04/1999. It is common case that two part bills were already issued in favour of PW3 in relation to the said work, the total amount of which is Rs.67,000/- and odd. The balance amount had to be disbursed on satisfactory completion of the work. It is the case of the prosecution which was set in motion by Ext.P2 F.I.statement given by PW2 that on 29/04/1999 Crl. Appeal No.176 of 2002 -12- PW2 and PW3 went over to the house of the appellant to have the final bill passed without any delay and thereupon, the appellant demanded by way of illegal gratification an amount of Rs.8,000/-. According to PW2, on their expressing difficulty in making the payment, the appellant told them that in the event of non-payment of the amount, bill will be prepared for a lesser amount and that preparation of the bill will be delayed and the fund will lapse and thereupon they agreed to pay an amount of Rs.5,000/- by way of illegal gratification which was however, agreed to by the appellant. Pursuant thereto, according to PW2 measurement of the work was recorded by the appellant on 30/04/1999. PW2 stated further that the appellant had instructed them that the amount has to be paid at his residence on 02/05/1999 and further that he was instructed that he alone need go Crl. Appeal No.176 of 2002 -13- over to make the payment and accordingly, he alone went over to the house of the appellant on 02/05/1999 and made payment of an amount of Rs.4,000/- and the appellant instructed him to come over in the morning on 03/05/1999. He stated that when he approached the appellant on 03/05/99, the appellant entrusted him Ext.P3 'M' book for being submitted to the Assistant Executive Engineer at D.R.D.A, Thrissur; that himself and PW3 took Ext.P3 measurement book to the Assistant Executive Engineer at D.R.D.A, Thrissur who on the same day returned the measurement book for being entrusted with the appellant and on the same day the measurement book was entrusted with the appellant in the evening at his residence. According to PW2, the appellant thereupon, instructed him to come over to the Block Office at 1.15 p.m. the next day along with the balance amount and it was consequently Crl. Appeal No.176 of 2002 -14- that they gave Ext.P2 F.I.statement at the Vigilance office on 04/05/1999. 10. While giving the F.I.statement the case of PW2 was not on the lines on which he gave testimony before court. He has stated in Ext.P2 F.I.statement that the accused came over to the work site and recorded the measurements but did not prepare the bill and therefore, on 29/04/99 himself and PW3 went over to the house of the accused and met him. This means that the measurement was recorded prior to 29/04/99. It is on production of Ext.P3 measurement book that it was realised that the measurement was taken by the accused only on 30/04/99. To patch up the discrepancy PW2 was altering his stand and stating that it was pursuant to their meeting the accused on 29/04/99 that on 30th the accused came over and took measurement. As per Ext.P2 F.I. statement, he had no case that the payment was Crl. Appeal No.176 of 2002 -15- instructed to be made by him alone coming to his house. What was stated was that at about 7.00 p.m. on 02/05/99 PW2 went over to the house of the accused and made payment of Rs.4,000/- from out of Rs.5,000/- agreed to be paid and that he alone was there then. In deposition PW2 has taken a different stand that on 30th when the accused came over to take the measurement also there was a demand for payment of Rs.5,000/- and that was at the work site. He had no such case of a further demand having been made on 30th for payment of Rs.5,000/- at the work site. In fact as per Ext.P2 F.I.statement, after PWs.2 and 3 met the appellant on 29/04/99, the next meeting was only on 02/05/99 at the house of the accused and that was by PW2 only and it was then he made payment of Rs.4,000/- to which even PW3 is not a witness. Further, contrary to what has been stated in Ext.P2 Crl. Appeal No.176 of 2002 -16- F.I.statement in chief examination PW2 has stated that himself and PW3 had promised that Rs.4,000/- would be paid on the second namely on 02/05/99. While deposing before court, it is the case of PW2 that he was asked by the accused to come alone unaccompanied by PW3. The instruction to come alone according to him was being given on 29th as deposed by him in chief examination. This is not consistent with the statement in cross examination that both PWs.2 and 3 promised at site on 30/04/99 to pay Rs.4,000/- on 02/05/99 when the accused came over to site to take measurement. If at all it was a promise by both PWs.2 and 3 to make part payment of Rs.4,000/- on 02/05/99 there was no necessity for the appellant to instruct PW2 who is the Chairman of the committee to come alone to make the payment of the amount when the bill amount is due to PW3 the nominee of the work and not to PW2. In Crl. Appeal No.176 of 2002 -17- Ext.P2 F.I.statement, he has no case that he had been asked to come alone to his residence with the cash. When it was specifically asked to PW2 as to whether he did state in Ext.P2 that the appellant asked him to bring Rs.4,000/- on 02/05/99 his answer was that he is not remembering. But all the same, he asserts that the fact of measurement having been taken after 29/04/99 had been stated before police. It is also admitted by PW2 that for recording measurement, no bribe had been asked. If at all demand for bribe was made on 29/04/99 and that was being stated in Ext.P2 F.I.statement there was absolutely no reason why PW2 had not disclosed the fact of the demand for bribe having been repeated on 30/04/99 while coming over to take measurement. Further, according to PW2, the fact of the demand for bribe made by the appellant on 29/04/99 was being disclosed for Crl. Appeal No.176 of 2002 -18- the first time before the Vigilance only. The said version also cannot be believed as there is absolutely no reason why he should keep it a secret when there was a beneficiary committee constituted for the execution of the work. One is at a loss to understand why he should keep it a secret and cause Ext.P2 statement being given to the police on 04/05/99 after five days. According to PWs.2 and 3 the measurement book, bills etc. were entrusted with PW2 by the appellant in the morning on 03/05/99 and on the same day they delivered it at the D.R.D.A where it was verified and passed by the Executive Engineer and returned to them in the evening on the same day. The Executive Engineer who is said to have so sanctioned payment or approved the bill has not been examined and no record is produced to show that the measurement book etc. were produced before the Executive Crl. Appeal No.176 of 2002 -19- Engineer of D.R.D.A on 03/05/99 and that he returned the same on the same day. PW2 has further stated that there is minutes maintained by the beneficiary committee and there is also accounts and those are with PW3 and that the amount for payment of the bribe is also shown in the said account and further that he got back Rs.4,000/- from the committee which he had advanced for payment of bribe. Neither the minutes nor the accounts are produced which would have thrown some light on the truth or otherwise of the case so set up. According to PW2, nobody has witnessed payment of Rs.4,000/- to the appellant/ accused at his residence. So, apart from the interested testimony of PW2 who from the testimony is evidenced to be more interested in the matter rather than PW3, there is no evidence to corroborate the testimony of PW2 to the effect that he has paid Rs.4,000/- as bribe. At Crl. Appeal No.176 of 2002 -20- another portion of the cross examination PW2 has stated when it was put to him that he has neither gone to the house of the appellant nor paid the amount of Rs.4,000/- and he was giving deposition falsely to convince the other members of the committee, he has stated that the amount of Rs.4,000/- was being procured by he himself advancing a portion of the amount and the committee members collecting the balance amount. However, if what is so stated is true obviously it is false to say that he was disclosing regarding the demand of bribe by the appellant for the first time before the police while giving Ext.P2 F.I.statement. Thus, however, in the matter of payment of Rs.4,000/- to the appellant/accused there is absolutely no corroboration of the testimony of PW2 by any witness. 11. In the last portion of Ext.P2 F.I.statement the case of PW2 is that the bill Crl. Appeal No.176 of 2002 -21- passed by the Assistant Executive Engineer was obtained and entrusted back with the appellant and thereupon he stated that he will issue the cheque by 1.00 p.m the next day and then the balance amount of Rs.1,000/- also has to be paid to him. But PW1 has deposed that after preparation of bill, the appellant/accused who is the Assistant Engineer has absolutely nothing to do in the matter of disbursement of the bill and that he has no responsibility thereafter. PW7 has deposed that after preparation of the final bill, the bill and the measurement book will be forwarded to the Project Officer from the engineering section through the B.D.O; that the Project Officer will pass the bill and on the bill coming back to the section the monitoring committee's muster roll, satisfaction report etc. would be checked and memo of payment will be prepared thereafter and that would be submitted before Crl. Appeal No.176 of 2002 -22- the Block Panchayat Committee through the Junior Superintendent; that the committee would pass the bill and through the B.D.O it will come back to the section and thereafter contingent bill will be prepared and cheque will be written and it will be submitted before the Secretary of the Block Panchayat and that payment can be effected only if the cheque is signed by the Secretary and that cheque is issued to the Convener of the work. The procedure so deposed to by PW7 goes to show that the matters are all beyond the hands of the appellant/accused when once the Assistant Executive Engineer has passed the bill and the appellant who is only an Assistant Engineer has nothing at all to do thereafter with the issuance of the cheque. 12. Now coming to the evidence of PW3 who is stated to have accompanied PW2 while approaching the appellant at his residence on Crl. Appeal No.176 of 2002 -23- 29/04/99, he does not support the testimony of PW2 on all aspects. Though PW3 stated that he was with PW2 at the time of the occurrence involved in this case and at the time of lodging the complaint before the Vigilance, his version is that on 27/04/99 the work was completed and the appellant was approached and thereupon the appellant said that the bill will not be sanctioned unless an amount of Rs.8,000/- is paid by way of bribe. All the same, in chief examination he does not say that there was any demand to reduce the amount and accordingly the demand was reduced to Rs.5,000/-. He also does not say that PW2 was accompanying him when he met the appellant. According to him also however, the measurement was taken on 30th and it is after taking the measurement that the accused demanded payment of bribe. He does not say that the amount of Rs.4,000/- was paid earlier as the first Crl. Appeal No.176 of 2002 -24- instalment. In cross examination he also admits that on 04/05/99 he did not enter into the room of the appellant and therefore, he is not aware as to what happened within the room of the appellant. He has also stated that what the Dy.S.P recorded in Ext.P2 F.I.statement is not the details which he furnished but the details disclosed by PW2. He has also admitted that he has no direct knowledge of payment of Rs.4,000/- to the appellant and that it is what he was told by PW2. He further admitted that the records of the beneficiary committee are in his possession but that he is not aware as to whether the demand of bribe or its payment was recorded therein. He admitted that the minutes was kept by him in his house but he is not aware as to whether this is now available. However, no investigation was conducted on those lines to ascertain whether any minutes was available which would throw Crl. Appeal No.176 of 2002 -25- some light on the matters alleged. 13. From the evidence of PW2 and PW7 it has however, come out in evidence that PW2 had occasion for animosity towards the appellant as he was sent out of the room of the appellant on an earlier occasion as he created some trouble in the office. PW2 has deposed in cross examination that in the execution of the work there was