IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 CRL.A.No. 1744 of 2003(A) ------------------------------------------- CC.18/2000 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT/ACCUSED: E.PHILIP, S/O JACOB, 29/1961-a, NADUTHODIPARAMBA, KOTTOOLI AMSOM DESOM (JUNIOR ENGINEER, KSEB, ELECTRICAL SECTION OFFICE, POTTAMMAL). BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.DELVIN JACOB MATHEWS RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011 ALONG WITH CRA NO.200 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- Crl.A.No.1744 of 2003 & Crl.A.No.200 of 2005 -------------------------------------- COMMON JUDGMENT Appellant in Crl.A.No.1744/2003 was Junior Engineer of Kerala State Electricity Board, Pottammal. He was convicted and sentenced for the offence under Section 7 and acquitted of the offence under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. Crl.A.No.1744/2003 is filed challenging the conviction and sentence. State filed Crl.A.No.200/2005 challenging the acquittal of the appellant for the offence under Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act. 2. Prosecution case is that PW1 Abdul Azeez, a High School Teacher, was residing in a house at Mangalassery, near Mavoor Road and his brother Nooruddeen was also residing with him after he returned from Quatar. He was CRA 1744/03&200/05 2 engaged in the work of filling up applications for passport from the residential house and arranging Air tickets. Employees of Kerala State Electricity Board, on inspection, found that electric connection given to that house is being used for commercial purpose also and reported that domestic tariff is to be changed to commercial tariff. Accordingly, the tariff was changed to commercial tariff. Later, appellant came to know that said change to commercial tariff was not proper as 20% extra energy could be used for non domestic purpose. Hence, he submitted Exhibit P1 application dated 13.10.1998 to Assistant Engineer, Pottammal to change the tariff from commercial to domestic. On receipt of Exhibit P1 application, it was found that consumer is not PW1 and instead, it is Abdulla, who is no more. PW1 was advised to change the ownership into his name and then only the tariff could be changed. It is alleged that on 24.2.1999, he purchased two applications, viz., for change of ownership and change of tariff, evidenced by Exhibit P4 series of receipts. By Exhibit P5 order dated CRA 1744/03&200/05 3 3.3.1999, ownership was changed to the name of PW1. It is alleged that still the tariff was not changed and PW1 met the appellant on 14.7.1999 at his office. The case is that appellant demanded a bribe of Rs.500/-. PW1 was not prepared to pay the bribe. On 17.7.1999, he went to the Vigilance Office from where he furnished Exhibit P6 F.I. Statement at 9 a.m. Under Exhibit P6(a) FIR, V.C.No.9/1999 of Vigilance and Anti Corruption Bureau, Kozhikode, was registered. As PW1 was agreeable for arranging trap, PW7, Deputy Superintendent of Police, vigilance sought presence of Gazetted Officers through District Collector and procured the presence of PW3, Senior Superintendent of Re-survey and CW3, Special Tahsildar (who was not examined). They reached the office of PW7. In their presence, PW7 gave instructions and demonstrated the effect of Phenolphthalein powder test. PW1 produced MO1 currency notes (five hundred rupee notes), brought as the proposed bribe. It was smeared in phenolphthalein powder, entrusted back to PW1 with instructions to hand over it to the appellant, Junior CRA 1744/03&200/05 4 Engineer (shown in Exhibit P12(a) pre-trap mahazar as Overseer), only on demand. Along with PWs 1 and 2 and Special Tahsildar, PW7, Deputy Superintendent of Police and the vigilance team proceeded towards the Office of Assistant Engineer, Kerala State Electricity Board, Pottammal, after preparing Exhibits P12(a) and P12(b) post trap mahazars. They reached the Office of Kerala State Electricity Board, Pottammal, by about 12.15 p.m. PW1 proceeded to the office of the appellant, which was on the upstairs. It consists of three rooms. The western most room was used by Sub Engineers and Junior Engineer and the eastern most room by Assistant Engineer and the middle room by the staff. The stair to the upstairs is on the western side near to the western room. It is alleged that PW1 met the appellant Junior Engineer and he asked whether PW1 has brought the money and when answered positively, appellant proceeded towards the eastern most room and took out a file. PW1 followed him to the room of the appellant and paid MO1 currency notes. It was accepted CRA 1744/03&200/05 5 by the appellant. PW1 then came down to the ground floor and gave the pre-arranged signal. PW7, along with PW2 and Special Tahsildar, who were waiting outside, rushed to the upstairs. Appellant was found standing on the veranda on the eastern corner. PW7 asked him whether he received money from PW1, as PW1 had earlier conveyed it to PW7 that money was paid. When appellant admitted the same, he was taken to his room, the eastern most room and MO1 was recovered from his pocket through PW2. The phenolphthalein test conducted on his fingers was found positive. He was arrested. Exhibit P13 post trap mahazar was prepared. Appellant was produced before the Special Judge. After completing the investigation, PW7 laid the charge. It was taken cognizance for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act by Special Judge (Vigilance), Kozhikode. 3. When the charge for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of CRA 1744/03&200/05 6 Corruption Act was framed and read over, appellant pleaded not guilty. Prosecution examined seven witnesses and marked thirty four exhibits and identified eight material objects. After questioning the appellant under Section 313 of Code of Criminal Procedure, when he was called upon to enter on his defence, appellant examined two witnesses. No documentary evidence was produced on his side. 4. Learned Special Judge, on the evidence, found the appellant guilty of the offence under Section 7 of Prevention of Corruption Act and convicted and sentenced him to rigorous imprisonment for three years and a fine of Rs.25,000/- and in default, simple imprisonment for one more year. Finding that there is no evidence to prove that appellant was a habitual receiver of bribe, he was acquitted of the offence under Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act. 5. Appellant, the accused, is challenging the conviction contending that learned Special Judge did not properly appreciate the evidence and evidence of PW1 is unreliable CRA 1744/03&200/05 7 and untrustworthy and is not corroborated by any other evidence and there is no evidence to prove either the demand or the payment of bribe. It is contended that in fact PW1 thrust MO1 currency notes into his pocket on that crucial day and as appellant was perplexed for a moment and was following PW1 to return the cash, the Vigilance Deputy Superintendent of Police and party caught him and the case was foisted and the prosecution case has been disproved by the evidence of DWs 1 and 2 and the contradictions in the evidence of prosecution witnesses and in such circumstances, the conviction is not sustainable. 6. State has filed Crl.A.No.200/2005 contending that acquittal of the appellant for the offence under Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, in spite of the finding that appellant demanded bribe and also accepted it when it was paid by PW1, on the ground that he is not a habitual receiver of bribe, is illegal and is not sustainable. CRA 1744/03&200/05 8 7. Learned senior counsel appearing for the appellant in Crl.A.No.1744/2003 and learned Public Prosecutor appearing for the State in Crl.A.No.200/2005 were heard. 8. Learned senior counsel pointed out that though PW1 claimed that he had met the appellant several times to change the tariff from commercial to domestic, even in Exhibit P6 F.I. Statement, the case is not that appellant was either the Sub Engineer or a Junior Engineer, but only an Overseer, which cannot be the case if he had met the appellant and appellant had demanded bribe and PW1 paid the same. It was pointed out that though Exhibit P1 application was submitted on 13.10.1998 to change the tariff, it was submitted not by the consumer Abdulla, but by PW1 and therefore, there could not have been change of tariff under Exhibit P1 application and Exhibit P3 application to change the ownership was submitted only latter, on 24.2.1999 and Exhibit P5 order establishes that ownership was changed on 3.3.1999 without delay and change of tariff could only be thereafter. It was pointed out CRA 1744/03&200/05 9 that even Exhibit P5 order was not received by PW1 till 18.3.1999 and there is no evidence to corroborate the evidence of PW1 that there was a demand for Rs.500/- on that day. It was argued that if the evidence of PW1 is to be believed, on 17.7.1999, after the demand was allegedly made on 14.7.1999, PW1 met PW7 and furnished Exhibit P6 F.I. Statement and along with PW2, PW7 and others proceeded to the office of the appellant and PW1 alone went to the upstairs and met the appellant. It was pointed out that if the evidence of PW1 is to be believed, after verifying with PW1 whether he brought the bribe, appellant proceeded to his room, which is described as the eastern most room and from there, PW1 paid MO1, the bribe money and thereafter, went back to the ground floor and conveyed the pre-arranged signal. It was argued that even according to PW1, PW5, the Cashier and PW7, the Deputy superintendent of Police, the eastern most room was not that of the appellant Junior Engineer, but that of Assistant Engineer and the room of the appellant was the western CRA 1744/03&200/05 10 most room and if so, after verifying whether PW1 has brought the bribe money and appellant had proceeded to his room, it could be only the western most room and not the eastern most room and therefore, his evidence cannot be believed. It was pointed out that even in Exhibit P13 post trap mahazar, the eastern room is described as the room from where the money was demanded and paid and it is the case that appellant was standing on the eastern corner of the north south veranda and appellant was taken to the eastern most room, which is described as the room of the appellant and even PW7 admits that the room of the appellant is the western most room and hence, the case cannot be accepted. Learned senior counsel argued that on the evidence, finding of the learned Special Judge that appellant demanded bribe of Rs.500/- on 14.7.1999 and again on 17.7.1999 and PW1 paid it to the appellant and appellant accepted the same is unsustainable. It was also argued that even though MO1 currency notes were recovered from the pocket of the appellant, he successfully CRA 1744/03&200/05 11 explained that money was thrust upon his pocket by PW1 and he did not voluntarily accept the same and the defence case is proved by the evidence of Dws 1 and 2, who were cited as prosecution witnesses CWs18 and 22 and in such circumstances, the conviction is not sustainable. 9. Learned Public Prosecutor submitted that there is no reason to disbelieve the evidence of PW1 with regard to demand for bribe or payment of bribe or its acceptance, when the learned Special Judge, who had opportunity to witness the demeanour of the witnesses, accepted the evidence and held that PW1 paid the bribe and appellant accepted the same. In any case, when evidence of PWs 1 and 7 conclusively establish that MO1 tainted money was recovered from the pocket of the shirt worn by the appellant, Section 20 of Prevention of Corruption Act enables the prosecution to prove that money was received as bribe and evidence of DWs 1 and 2 was rightly not accepted by the learned Special Judge and the presumption provided under Section 20 was not discharged and CRA 1744/03&200/05 12 therefore, it is proved that appellant had demanded bribe and when it was paid by PW1, it was accepted by him and hence, conviction for the offence under Section 7 of Prevention of Corruption Act is perfectly legal. It is also argued that to attract an offence under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, prosecution need not establish that appellant was a habitual receiver of bribe and therefore, acquittal of the appellant on that ground is not sustainable and appellant should be convicted for the offence under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act also. 10. PW1 Abdul Azeez was admittedly residing in Building No.17/676 of Mangalassery Paramba, Puthiyara. The consumer number of the service connection granted to that unit was P.1181. The consumer was admittedly Abdulla. The connection granted was under Low Tension Tariff as Abdulla was a domestic consumer. It is the admitted case that Nooruddeen, the brother of PW1, was working in Quatar and on his return back to India, he CRA 1744/03&200/05 13 started to receive orders for Air Tickets, Buses and also engaged in filling up the applications for passports from the veranda of that house. When Kerala State Electricity Board Officers found that service connection is being used not only for domestic purpose but for commercial purpose also, it was reported to the Office. Later, the tariff was changed to commercial tariff. 11. Exhibit P25 Gazette Notification issued by Kerala State Electricity Board regarding extra High Tension Tariff and Low Tension Tariff shows that under Chapter IV clause X, domestic consumers covered by the notification will be allowed to utilise electrical energy in some portion of their residence for their own use for purposes other than domestic as defined under LT-I when such connected load does not exceed 20% of the total connected load in their premises and when the connected load other than domestic use in such cases exceeds the above said 20%, such loads shall be segregated and separate service connection obtained under appropriate tariff and when this is not done, CRA 1744/03&200/05 14 the tariff applicable to the whole service shall be at the appropriate tariff applicable to the connected load used for purposes other than domestic, if such tariff is higher than the tariff for LT-I. Clause XIII of the said Chapter further shows that consumers provided with LT supply for domestic use where the connected load does not exceed 500W are exempted from payment of monthly current charges if their average monthly/monthly consumption does not exceed 20 units. 12. Prosecution case is that as consumer is entitled to use not more than 20% of the total consumption for non domestic purpose, as provided under clause X. Exhibit P3 application was submitted to change the tariff from commercial to domestic as it was earlier. It is not disputed that when Exhibit P3 application was submitted by PW1, the consumer was Abdulla, who is no more and without changing the ownership, the tariff cannot be changed. Exhibit P3 application was later submitted on 24.2.1999 for changing the ownership. That application was obtained by CRA 1744/03&200/05 15 PW1, evidenced by Exhibit P4 series of receipts. Though under Exhibit P4 receipts an application for change of tariff was also obtained, there is no case that apart from Exhibit P3, any other application was submitted for change of tariff, except Exhibit P1, which was submitted earlier, at a time when PW1 was not a consumer. By Exhibit P5 order dated 3.3.1999 the ownership was changed as sought for in Exhibit P3 application and PW1 became the consumer. Therefore, he is entitled to get the tariff changed, if he is otherwise entitled to under the Rules. 13. Evidence of PW4, the Executive Engineer of Kerala State Electricity Board, establishes that for change of tariff, the ownership of consumer is to be changed and the owner so changed has to submit the receipt for payment of last current charges and the last spot meter reading is to be taken either by the Sub Engineer or by the Overseer and only thereafter, the tariff could be changed. Evidence of PW4, which is not disputed, establishes that authority to change the tariff is the Executive Engineer. Exhibit P26, the CRA 1744/03&200/05 16 Conditions of Supply of Electrical Energy issued by Kerala State Electricity Board, at Page 44, as clause 30, deals with change of tariff. It shows that change of tariff under LT from higher to lower tariff at the request of the consumer shall be permitted in bona fide cases by the officer not below the rank of Executive Engineer and the Executive Engineer shall satisfy himself the bona fides of the requests and record the reasons while permitting change of tariff. Hence, evidence of PW4, coupled with Exhibit P26, establish that appellant, as the Junior Engineer, could not have changed the tariff, as under Exhibit P26, the request could be permitted only by an officer not below the rank of Executive Engineer. With this aspect in mind, the prosecution case and evidence of PW1 are to be appreciated. 14. As per Exhibit P6 F.I. Statement, case of PW1 was that though Exhibit P1 application was submitted on 13.10.1998 to the Assistant Engineer, the tariff was not changed and after waiting for two months, PW1 went to CRA 1744/03&200/05 17 Kerala State Electricity Board Office, Pottammal and met the appellant. It is alleged that PW1 was informed by the appellant that he has to submit an application to change the ownership in his name and accordingly, he paid the money and obtained an application and submitted it on 24.2.1999. On 3.3.1999, the ownership was changed but the tariff was not changed. It is the allegation that PW1 met the appellant and he informed PW1 that he had sent it to the office at Gandhi Road and it is to be passed from there and still, the tariff was not changed. He enquired at the Central Section, Gandhi Road. Then he received the information that no such application was received from Pottammal Office and the Officer contacted Kerala State Electricity Board Section, Pottammal over phone in his presence and informed PW1 that application was forwarded. PW1 realised that he was being cheated. It is the allegation that thereafter PW1, finding that he was cheated and his several casual leaves were lost for this purpose, enquired about appellant and realised that he is a receiver of bribe. It is the specific case CRA 1744/03&200/05 18 that on 14.7.1999, PW1 went to Kerala State Electricity Board Office, Pottammal and enquired with the appellant. Then PW1 was asked to pay Rs.500/- and as PW1 was not willing to pay bribe, he approached Deputy Superintendent of Police, Vigilance and furnished Exhibit P6 F.I. Statement. As rightly argued by the learned senior counsel, if PW1 had gone to the Pottammal Office several times and met the appellant, it would have definitely known to him that appellant is not a Junior Engineer, but an Overseer. Exhibit P6(a) FIR also shows that appellant is described as an Overseer. Evidently, that was the case disclosed to PW7 by PW1. When, as per the Rules, the tariff has to be changed not by the appellant but by an Officer not below the rank of Executive Engineer and appellant was a Junior Engineer of Kerala State Electricity Board, Pottammal and Exhibit P3 application was admittedly submitted to the Assistant Engineer, it is difficult to swallow the statement of PW1 that appellant demanded bribe for change of tariff, while he could not have done. Apart from the evidence of PW1, there CRA 1744/03&200/05 19 is no other evidence to corroborate the claim of PW1 that appellant demanded Rs.500/- as bribe on 14.7.1999. In the light of this intrinsic evidence, the uncorroborated evidence of PW1, which is found not trustworthy and reliable, cannot be accepted to uphold that prosecution case that there was a demand for bribe on 14.7.1999. 15. After registering the case under Exhibit P6(a) FIR, PW7 procured the presence of PW2, the senior Superintendent of Survey and a Special Tahsildar, to be respectable the witnesses for the trap. Exhibits P12(a) and P12(b) pre-trap mahazars reveal the procedure to be followed and the instructions given. Exhibits P12(a) and P12 (b) do not show that the Gazetted Officers, whose presence were procured, were directed to follow PW1 to witness the payment and acceptance of bribe or to hear the demand for bribe. Instead, even the evidence of PW2, the Gazetted Officer and PW7, the Deputy Sup of Police, reveal that the Gazetted Officers, whose presence were procured to witness the trap, were not asked to follow PW1 and they did CRA 1744/03&200/05 20 not follow PW1 and instead, waited along with PW7 outside the office to get the pre-arranged signal. A Constable of the Vigilance Department was directed to convey the signal from PW1, who was asked to give the pre-arranged signal as and when the bribe money was paid. Therefore, to prove the demand for bribe, its payment and acceptance on 17.7.1999, there is only the evidence of PW1. The question is how far, the evidence of PW1 could be relied on. 16. Learned Special Judge, without elaborately discussing the evidence in the light of the discrepancies, disbelieved the defence case sought to be proved by the evidence of DWs 1 and 2 and held that evidence of PW1 establishes the demand, payment and acceptance of bribe. Evidence of PW1, if believed, would show that he climbed the stairs and found appellant sitting along with some others in the western room. PW1 admitted that apart from appellant, DWs 1 and 2, the Sub Engineer and an Apprentice, were in the same room. It is his case that when PW1 met the appellant and told him that he brought the CRA 1744/03&200/05 21 money which was demanded. Then appellant proceeded along the veranda and entered the eastern most room and took a file and PW1 followed him. It is his case that from that room of the appellant, he paid MO1 tainted money to the appellant and appellant received the same and put it in the pocket of his shirt and thereafter appellant gave Exhibit P7 blank form and asked him to take two photocopies of the same and he came out and gave the pre-arranged signal to the constable and went downstairs and at that time, PW7 and party reached the Office and thereafter, he went to his house. If PW1 had gone to the Office earlier, it cannot be believed that he is not aware of the room of the appellant. In cross-examination, PW1 unambiguously admitted that the eastern most room is that of the Assistant Engineer and the western most room is the office of Sub Engineers, including the appellant. Evidence of PW1 in cross-examination reveals that when PW1 met the appellant on that day, he was informed that receipt obtained by PW1 for payment of the last current charge bill is also to be produced and then spot CRA 1744/03&200/05 22 meter reading is to be taken. PW1 also admitted that DW2 Pragesh was asked by the appellant, in his presence, to go to the house of PW1 and get the spot meter reading. Evidence of DW2 corroborates that version. Evidence of DW2 corroborates the defence case that when PW1 met the appellant, he was asked to produce the receipt for payment of last current charge and appellant directed DW2 to take the spot meter reading and issued Exhibit P33 note for that purpose. PW1 also admitted that a note was given to DW2 for that purpose. If the evidence of PW1, in chief examination, is to be believed, on meeting the appellant, when PW1 disclosed that he brought the demanded money, appellant