IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 CRL.A.No. 1915 of 2004(C) ------------------------- CC.6/2003 of THE SPECIAL JUDGE (SPE/CBI)-1, ERNAKULAM) .................... APPELLANT/ ACCUSED: ---------------------------------- K.LINGOM, S/O.KOLAPPA NADAR, JUNIOR ENGINEER (CONSTRUCTION), GRADE-1, SOUTHERN RAILWAY, CALICUT, RESIDING AT HOUSE NO.5/63, GANAPATHIPURAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU-629 502. BY ADV. SRI.J.JOSE SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S): -------------------------- 1. THE SUPERINTENDENT OF POLICE, SPE/CBI, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS.SRI.P CHANDRASEKHARAN PILLAI & SRI.S.SREEKUMAR, SC FOR CBI. SRI.P.P.THAJUDEEN FOR DEFACTO COMPLAINANT THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 1915 of 2004(C) CRL.M.APP. NO.13627 0F 2004 IN CRL.APPEAL NO.1915 OF 2004 DISMISSED SD/- 26.5.2011 P.S.GOPINATHAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. “CR” P.S.GOPINATHAN, J. ------------------------------ Crl.A.No.1915 OF 2004 -------------------------------- Dated this the 26th day of May, 2011 J U D G M E N T ~~~~~~~~~~~ The appellant, the accused in C.C.No.6/2003 on the file of the Special Judge, SPE/CBI-I, Ernakulam was convicted by the learned Special Judge for offence under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act'). Consequently, he was sentenced to rigorous imprisonment for two years and a fine of Rs.20,000/- with a default sentence of simple imprisonment for six months for offence under Section 7 of the PC Act. For offence under Section 13(2), the appellant was sentenced to rigorous imprisonment for 3 years and a fine of Rs.25,000/- with a default sentence of simple imprisonment for one year. Assailing the above conviction and sentence, this appeal was preferred. 2. The prosecution case in brief is as follows: The appellant was working as a Junior Engineer Grade-I (Construction) in Southern Railway, Calicut during the year 2002 Crl.A.No.1915 OF 2004 2 and as such he was a public servant coming under Section 2(c) of the PC Act. During May and June, 2002 construction works of 11 culverts (minor bridges) between Calicut and Thanoor was going on. CW1, P.N.Shajahan, was the Contractor. CW1, after executing the agreement, had started the work. The appellant was supervising the execution of the work. Part payments were permissible at different stages of work. On 27.6.2002 at about 5.p.m., CW1 went to the office of the Executive Engineer, who was examined as PW8, requesting for taking measurements of the work so far completed and for making part payment. PW8 was not in the office. But the appellant was in the office. The appellant enquired as to for what purpose CW1 wanted to meet PW8. CW1 stated that it was for taking steps to measure the work already executed and for part payment. Then the appellant demanded Rs.2,000/- as illegal gratification and stated that in the event the said amount was paid he would take measurements and see that the payment was made. The appellant asked CW1 to pay the demanded illegal gratification by the following day in between 6 p.m. and 7.30 p.m. at his residence in Railway Quarters, Calicut. CW1 being got aggrieved of the demand, called upon PW1, the Inspector attached to CBI and complained about Crl.A.No.1915 OF 2004 3 the demand of illegal gratification by the appellant. PW1, after getting instructions from the superior officers, proceeded to Calicut. CW1 was asked to meet him at hotel Jaya in Calicut. PW1 along with party proceeded to Calicut and camped at Jaya hotel. CW1 arrived there and gave Ext.P1 complaint in writing alleging the demand of illegal gratification of Rs.2000/- by the appellant. PW1 took a copy of Ext.P1 and Ext.P1 was sent to the office at Kochi for registering a case. PW1, thereupon arranged two officers of the Canara Bank, who were examined as PWs 2 and 7 to lay the trap. PW1 demonstrated Phenolphthalein test in the presence of CW1 and PWs 2 and 7 at the hotel. Copy of Ext.P1 was given to PWs 2 and 7 and appraised them about the nature of the complaint. CW1 had brought a sum of Rs.2,000 /-for being paid to the appellant. MO7 series are the currency notes. PW1 got the same from CW1 and smeared with Phenolphthalein powder, and entrusted back to PW1 to pay to the appellant only on repetition of demand for illegal gratification. Ext.P2 mahazar, wherein CW1, PWs 2 and 7 are attestors, was prepared. In Ext.P2, the description of MO7 series were specifically noted. PW2 was asked to accompany CW1 as a friend and to witness the demand and acceptance of the illegal gratification. CW1 along with PW2 Crl.A.No.1915 OF 2004 4 proceeded to the house of the appellant in a motor cycle. PW1 along with PW7 and raid party with necessary apparatus and materials for conducting phenolphthalein test proceeded to the location of the quarters of the appellant and they took suitable positions as instructed by PW1. PW1 had instructed CW1 to give signal, in the event MO7 series were accepted by the appellant, by blowing horns of the motor cycle. CW1 along with PW2 entered the quarters of the appellant. The appellant welcomed them and they were provided a seat on the cot. The appellant according to the prosecution, discussed with CWI regarding the execution of the work and asked whether CW1 had brought the money that he demanded. Responding to the query, CW1 took out MO7 series and handed over to the appellant which he accepted. He counted MO7 series to satisfy that the amount demanded is paid. Then MO7 series were kept in a bag which was marked as MO10 and it was kept inside the cupboard in the room. CW1 and PW2 came out of the quarters and gave signal. PW1 along with CW1, PWs 2, 7 and the raid party rushed to the quarters and disclosed his identity. PW2 and 7 were also introduced to the appellant. Thereupon, Phenolphthalein test was conducted on both hands of the appellant separately. The result was positive on both hands. Crl.A.No.1915 OF 2004 5 The appellant was asked whether he had accepted illegal gratification from CW1. Though with hesitation, on repeated questions, the appellant admitted. The appellant was asked about the money. The appellant stated that it was kept in MO10 bag in the cupboard. PW1 asked the appellant to take it out. Obeying PW1, the appellant took out the bag and then the tainted currency notes were taken out. As ordered by PW1 the currency notes were handed over to PW7. Thereupon, the identity of MO7 series was verified with reference to Ext.P2 mahazar and seized, for which Ext.P4 recovery mahazar was prepared. Inside MO10 bag there was another sum of Rs.8,560/-. Since it was stated that the said amount was the personal earnings of the appellant, it was returned to the appellant for which Ext.P3 acknowledgment was obtained. The appellant was arrested and released on bail. The records were handed over to the office. Following that, the investigation was taken over by PW10, the Additional Superintendent of Police. PW10, after completing the investigation submitted the final report, accusing the appellant for the above said offences, before the trial court. 3. The learned Special Judge took cognizance and issued Crl.A.No.1915 OF 2004 6 process responding to which the appellant entered appearance. On his appearance, copies of the final report and connected documents were furnished. Thereafter, the appellant and the prosecution were heard. On finding that there are materials to send the appellant for trial, a charge for the earlier said offence was framed. The appellant pleaded not guilty when the charge was read over and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 to 10 were examined. Exts.P1 to P22 were marked. MOs 1 to 10 were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant stated that he was supervising the work executed by CW1 till 26.5.2002 and thereafter the work was being supervised by PW3 and that payments were effected to CW1 for the works executed till the appellant was supervising. The appellant further stated that there was a practice of sending labour money to sub contractors by the contractors through railway employees. Two sub contractors were examined by the appellant as DWs 1 and 2 to establish that there was a practice of sending money by the contractor to the sub contractor through the railway employees. The learned Judge, on appraisal of the Crl.A.No.1915 OF 2004 7 evidence, arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. 4. The fact that the appellant was working as a Junior Engineer in Railway as alleged by the prosecution is not only not disputed but also admitted. In support of that allegation of prosecution, PW3, another Junior Engineer, who was working under the appellant; and the Executive Engineer, who was examined as PW8 had given evidence. Supporting the evidence of PWs 3 and 8, there is the evidence of the Chief Engineer as PW9 who had accorded sanction to prosecute the appellant. The evidence of PWs 3, 8 and 9 that the appellant was working as a Junior Engineer remains unimpeached. Ext.P7, order according sanction to prosecute the appellant, issued by PW9 also remains unimpeached. No argument was advanced by the learned counsel appearing for the appellant, assailing the evidence of the above witnesses and Ext.P7. In the above circumstance, I concur with the lower court and find that the appellant was working as a Junior Engineer, Gr.I in Railways as alleged by the prosecution and as such he was a public servant coming under Section 2(c) of the PC Act and that the prosecution was launched with due sanction Crl.A.No.1915 OF 2004 8 obtained from PW9 who was the authority competent to accord sanction to prosecute the appellant. 5. CW1, the defacto complainant, was not examined for the reason that he had gone abroad and his presence could not be procured by the prosecution. We, therefore, miss his evidence. In support of the prosecution case regarding the demand and acceptance of illegal gratification, there is testimony of PWs 1, 2 and 7 supported by Exts. P1, P2 and P4. PW1, the trap officer had given evidence in support of the prosecution case. Ext.P1 narrates the demand of illegal gratification by the appellant. PW1 would depose that CW1 complained him over phone and after getting authorisation from the superior officers, PW1 proceeded to Calicut and lodged at hotel Jaya. CW1 went there and lodged Ext.P1 complaint. After taking a copy, Ext.P1 was forwarded to the CBI office, Kochi for registering a case and then PW1 procured the presence of PW2 and 7 and made arrangements for trapping the appellant. PW1 would also depose that CW1 had brought MO7 series currency notes for being paid to the appellant. PW1 obtained the same from CW1 in the presence of PWs 2 and 7 for which Ext.P2 mahazar was prepared. Thereafter, Phenolphthalein Crl.A.No.1915 OF 2004 9 test was demonstrated in the presence of CW1, PWs. 2 and 7. The contents in Ext.P1 complaint were appraised to PWs. 2 and 7 after giving a copy of the same to them. CW1 and PW2 were sent together with instruction to PW2 to witness the transaction between CW1 and the appellant. They proceeded on a motor cycle. PW1 and party along with PW7 proceeded to the spot in their official vehicle and took positions in and around the quarters of the appellant. PW1 had given instruction to give signal by blowing horns in the event the appellant had accepted the tainted money. CW1 and PW2 went inside the quarters and later they came out. CW1 gave signal by blowing horn. On getting signal, PW1 rushed to the quarters of the appellant along with CW1, PWs 2 and 7 and disclosed his identity. The hands of the appellant were subjected to Phenolphthalein test. Hands and solution turned pink. The appellant was found perplexed. When asked whether the appellant had accepted the gratification from CW1, the appellant on repeated questions, conceded and took out MO10 bag from the cupboard. From MO10 bag, MO7 series were taken out. As asked by PW1, MO7 series were handed over to PW7. The identity of MO7 series were verified with reference to Ext.P2 and found that MO7 series are the same that were smeared with Crl.A.No.1915 OF 2004 10 Phenolphthalein powder and entrusted to CW1 for which Ext.P2 mahazar was prepared. Thereupon, the appellant was arrested. For recovery of MO7 series, Ext.P4 recovery mahazar was prepared. Inside MO10 bag there was an amount of Rs.8560/-. It was handed over to the appellant for which Ext.P3 acknowledgment was obtained. Thereafter, the appellant was arrested and released on bail. The house of the appellant was searched for which Ext.P5 search list was prepared. Exts.P6, P7 and P8 series are some of the documents seized from the house of the appellant. MO1 is the solution used for demonstrating the phenolphthalein test. MO2 is the cloth used for sealing MO1. MO3 and MO5 are the solution used for phenolphthalein test on the hands of the appellant. MO4 and MO6 are the clothes used for sealing MO3 and MO5 bottles. PW1 had also deposed that MO10 bag was also subjected to Phenolphthalein test and that the result was positive. MO8 is the solution used for phenolphthalein test on MO10 bag and MO9 is the clothes used for sealing MO8 bottle. Returning to the office, the records were handed over. The material objects and the records were then forwarded to the trial court. Crl.A.No.1915 OF 2004 11 6. PW2 would depose that he was working as officer in the Regional Office of the Canara Bank and that on 28.6.2002, he along with PW7, a colleague, was summoned to Room No.208 of hotel Jaya, wherein PW1 along with the party was camping. On arrival, PW1 disclosed the purpose for which they were summoned. A copy of Ext.P1 was given to them and the particulars were appraised. Thereafter, MO7 currency notes were obtained from CW1 and Phenolphthalein test was demonstrated after smearing Phenolphthalein powder over MO7 series. MO7 series were then handed over to CW1 for which Ext.P2 mahazar was prepared, wherein he is an attestor. He would further depose that he along with CW1 went to the quarters of the appellant and entered the quarters. PW2 was introduced to the appellant as a friend of CW1. They were received by the appellant and asked to sit on the cot inside the room in which the appellant was sitting on a chair. CW1 started discussing the work. Thereupon, the appellant asked whether CW1 had brought the money demanded on the previous day. When CW1 answered affirmatively, the appellant stretched his hands. MO7 series were taken out by CW1 from his pocket and handed over to the appellant. The appellant accepted the same, counted the notes Crl.A.No.1915 OF 2004 12 and then kept in the cupboard. CW1 and PW2 came out and gave signal to PW1. Thereupon, PW1 rushed to the house of the appellant along with PWs 2, 7, CW1 and the raid party. The identity was disclosed to the appellant. The appellant was perplexed. Hands of the appellant were subjected to Phenolphthalein test which turned positive. On questioning, the appellant admitted that he had accepted the tainted notes from CW1. As asked by PW1, the appellant took out MO10 bag from the cupboard and from it, MO7 currency notes were taken out. It was handed over to PW7 as directed by PW1. MO7 series were verified with reference to Ext.P2 and then seized after satisfying the identity. For seizure Ext.P4 mahazar, wherein himself, PW7 and CW1 are attestors, was prepared. 7. PW7 had given evidence almost corroborating with the evidence adduced by PWs 1 and 2. PWs 1, 2 and 7 were subjected to searching lengthy cross examination. But no material was disclosed to disbelieve them. What was suggested to PWs 1 and 2 is that they forced into the quarters of the appellant and thrust MO7 series at the hands of the appellant and then seized. To PW7, it was suggested that nothing as alleged by Crl.A.No.1915 OF 2004 13 the prosecution occurred and the case was falsely registered to which PW7 answered negatively. PWs. 2 and7 are admittedly officers employed in Canara Bank and they are no way connected either to the prosecution or to CW1 or to the appellant. On a critical analysis of the evidence of PWs 2 and 7, I find that they are independent and credible witnesses. There is nothing on record to show that they have got any favour or disfavour either with the result of the prosecution or the defence. The suggestions put to PWs 1, 2 and 7 would show that the appellant had admitted that he was in possession of MO7 series. But the explanation is that MO7 series were thrust into the hands of the appellant. Regarding that, absolutely there is no evidence. As I mentioned earlier, the appellant had a case that there was a practice for the railway contractors sending money to the sub-contractors through the railway employees. It is in support of that contention, DWs 1 and 2 were examined. That defence is contrary to the plea of thrusting MO7 series by force. If the statement of the appellant is considered in the light of the evidence of DWs 1 and 2, the appellant had in fact impliedly admitted the acceptance of money by him. But his case is that it is for being handed over to the sub- contractor. It is too difficult to believe that the appellant, middle Crl.A.No.1915 OF 2004 14 class officer in Railway, had been working as agent for carrying money of the contractors. However, if that defence is believed, the appellant had voluntarily accepted MO7 series for handing it over to the labourers of CW1. On a critical reappraisal of the evidence in the light of the defence version, I find that there is nothing to interfere with the conclusion of the trial court that the prosecution had succeeded to establish that the appellant had accepted MO7 series from CW1 voluntarily. 8. PW3 and 8 were examined by the prosecution to establish that the appellant was supervising the construction of the culvert and that PW3 was Junior Engineer Grade-II appointed to assist the appellant. PW3 and 8 had given evidence that there was practice of giving part payment for which the measurements had to be taken periodically during different stages of the work. Referring to Exts.D2, D3 and D4 and the statement of the appellant, Sri.J.Jose, the learned counsel appearing for the appellant, would submit that the appellant was supervising the work executed by CW1 till 26.5.2002 only and thereafter the appellant was no way connected with the work executed by CW1. Therefore, according to the learned counsel, there was no Crl.A.No.1915 OF 2004 15 occasion for the appellant to demand illegal gratification as he was no way connected with the execution of the work. The evidence of PWs 3 and 8 is consistent that the appellant was the Junior Engineer in charge to supervise the work. Though Exts.D2, D3 and D4 would show that appellant was taking measurements upto 26.5.2002, there is no evidence on record to come to a conclusion that the appellant was removed from the duty to supervise the work executed by CW1 or that PW3 alone was authorised to supervise the work. There is also no material on record to come to a conclusion that CW1 was aware that it was PW3 who had to supervise the work. In the above circumstance, I find that Exts.D2, D3 and D4 are not sufficient enough to come to a conclusion that the appellant had no duty to supervise the work that was being executed by CW1. 9. Once it is established the appellant had accepted any gratification it is for him to prove that there was no demand or acceptance as an illegal gratification as a motive or reward in respect of an official act mentioned in Section 7. Otherwise, there shall be a presumption against the public servant under section 20 of the PC Act which reads as follows: Crl.A.No.1915 OF 2004 16 "20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn". 10. The appellant has not at been able to establish that MO7 series was accepted or obtained not as a gratification from CW1 for discharging the official duty. Relying upon the decision Crl.A.No.1915 OF 2004 17 reported in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede [2010 (2) SCC (Cri) 385], the learned counsel appearing for the appellant submitted that demand of illegal gratification is a sine qua non for the constitution of offence under Section 7 of the PC Act. According to the learned counsel, the prosecution failed to examine the defacto complainant and to establish the demand. Therefore, according to the learned counsel, there is absolutely no evidence regarding the demand of illegal gratification by the appellant. Since there is no evidence regarding the demand, the question of presumption according to the learned counsel would not arise. On the other hand, the learned standing counsel appearing for the CBI, relying upon the decision reported in M.Narsinga Rao v. State of A.P. [2001 Supreme Court Cases (Cri) 258], T.Shankar Prasad v. State of A.P. [2004 (SC) (Cri) 870], M.Sunderamoorthy v. State of Tamil Nadu [1990 CRI.L.J. 1309), argued that in a case where the prosecution had succeeded to establish the acceptance of tainted money there shall be a statutory compulsory presumption in favour of the accused and in this case since there is no rebuttal evidence, in the light of Section 4 and 114 of the Evidence Act and Section 20 of the PC Act, there is a statutory presumption in favour of the Crl.A.No.1915 OF 2004 18 prosecution that the appellant had accepted the illegal gratification as a reward for discharging the official duty. 11. Relying upon the decisions reported in Sathianathan v. State (1999 CRI. L.J. 4710) the learned Standing Counsel for the C.B.I also argued that in the