IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 CRL.A.No.651 of 2000 -------------------------- CC.44/1999 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT/ACCUSED: -------------------------- P. RADHAKRISHNAN, FORMERLY VILLAGE OFFICER, MALAYALAPPUZHA VILLAGE. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.651 of 2000 ------------------------------------------------ Dated this the 20th day of February, 2008 JUDGMENT The appellant was the accused in C.C.44/99 on the file of the court of Enquiry Commissioner and Special Judge, Thiruvananthapuram for offence under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 13(2) thereof. After trial he was found guilty of offence both under Sections 7 and 13(1) (d) of the Prevention of Corruption Act read with Section 13(2) thereof and was convicted and sentenced by the Enquiry Commissioner and Special Judge to undergo rigorous imprisonment for a term of two and a half years and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for a term of six months for offence under Section 7 of the Prevention of Corruption Act, 1988; and to undergo rigorous imprisonment for a period of three and a half years and to pay a fine of Rs.25,000/- and in Crl. Appeal No.651 of 2000 -2- default to undergo rigorous imprisonment for a term of one year for offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988 read with Section 13(2) thereof with benefit of concurrency for the substantive terms of imprisonment. It is assailing the said conviction and sentence that this appeal is filed. 2. The charge for which the appellant was tried in the court below is that he, while being a public servant in his capacity as Village Officer of Malayalappuzha Village in Kozhencherry taluk in Pathanamthitta district during the period from January, 1995 to September 1997 abused his official position as such public servant and committing criminal misconduct demanded illegal gratification of Rs.500/- from PW1 Paramanandhan as a motive or reward in respect of an official act - to wit - for effecting mutation in his name of ten cents of property at the village office Malayalappuzha and in pursuance of the said Crl. Appeal No.651 of 2000 -3- demand accepted Rs.200/- and demanded for the balance amount of Rs.300/-; repeated the demand on 19/09/97 and 23/09/97 and in pursuance thereof accepted the said sum of Rs.300/- from PW1 Paramanandhan at about 2.55 p.m. on 23/09/97 at the courtyard of the village office Malayalappuzha and thereby derived pecuniary advantage for himself rendering him liable to conviction for offence punishable under Sections 7 and 13 (d) of the Prevention of Corruption Act, 1988 read with Section 13(2) thereof. 3. The case had its genesis by PW1 going over to the vigilance police station at Pathanamthitta and giving Ext.P1 F.I. statement complaining that the appellant demanded from him on 19/09/97 at the Village Office where he was working as Village Officer to pay him an amount of Rs.300/- by way of illegal gratification for effecting mutation in respect of properties purchased by him under the originals of Exts.P2 and P3 sale Crl. Appeal No.651 of 2000 -4- deeds. PW9/the Dy. S.P. who recorded Ext.P1 F.I. Statement from PW1 registered the case as vigilance case No.10/97 of Pathanamthitta vigilance police station on 23/09/97 drawing up Ext.P1(a) FIR in that behalf. The investigation in the said case was conducted initially by PW9, thereafter PW7 the Circle Inspector of Vigilance and on completion of the investigation Final Report was laid by PW8 the successor in office of PW9. The Final Report was registered on the file of the court of the Enquiry Commissioner and Special Judge as C.C.44/99. 4. On appearance of the appellant in the court below pursuant to receipt of summons, he engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offence under Section 7 of the Prevention of Corruption Act as also under Section 13(1)(d) of the Prevention of Corruption Act read with Section 13(2) Crl. Appeal No.651 of 2000 -5- thereof; was read over and explained to the appellant and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the prosecution, PWs.1 to 9 were got examined, Exts.P1 to P12 were got marked and MOS.1 to 7 were got identified. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, PW1 approached him in August, 1997 and wanted mutation effected in his name in relation to 1.10 acres of property; that on verification of the records, it was found that documents related only to 70 cents; and that the transfer was in favour of the children of PW1 and therefore, he was told that mutation could be effected only in the names of his children and thereupon, PW1 went back saying that it is not enough. Again PW1 Crl. Appeal No.651 of 2000 -6- approached him on 12th August, 1997 at the village office and submitted the documents and remitted the fee for effecting mutation and cleared the tax arrears for the last three years and obtained receipt. Thereafter, reading a letter received by him on the directions from the Collector for effecting collection for the independence day celebrations, request was made to make donation as it was understood from DW2 who was accompanying PW1 that PW1 is a man of means and is capable of effecting donation; that thereupon, PW1 told him that there is no sufficient cash with him then and offered to pay it later informing also that there may be some delay for him to come over as his daughter's marriage is to take place; that on 13/08/97 the donations collected along with another Rs.350/- which was deficit in the collection effected was entrusted by him to the Tahsildar; that the application for effecting mutation submitted by PW1 was forwarded to the Tahsildar on Crl. Appeal No.651 of 2000 -7- 12/08/97; that after a few days PW1 came over to the office and made enquiries about the mutation and then he was told that the application is already forwarded to the Taluk office; that on 23/09/97 PW1 offered a wrapped packet to him in the lane that leads to village office saying that it is amount which he had offered earlier but that he did not accept it saying that it can be received when there is any function in the Taluk office and thereupon, PW1 left the place and while he was verifying the receipts and the day book vigilance officials came over and enquired to him as to whether he demanded cash from PW1 and he received cash and thereupon, he told them that the packet which was offered by PW1 had not been received by him though however, on 12/08/97 he had asked for donation to PW1 as per the directions in the order issued by the Tahsildar. According to him, the vigilance officials took him to the vigilance office; got his shirt, removed and surrendered and he Crl. Appeal No.651 of 2000 -8- was produced before court causing him to wear the shirt that had been brought over from his house; and that on account of animosity that PW1 developed towards him consequent on his refusal to effect mutation in his name as well, he was implicating the appellant to tarnish him and destroy him and his family foisting this case falsely misleading the vigilance officials. 6. On the defence side DWs.1 and 2 were examined and Exts.D1 to D3 were got marked. The Enquiry Commissioner and Special Judge who tried the case heard submissions of the Additional Legal Adviser for the Vigilance and Anti Corruption Bureau as also the defence counsel; considered the case in the light of the evidence adduced as aforesaid; found that the appellant has committed offence punishable under Section 7 as also under Section 13(1)(d) of the P.C Act read with Section 13(2) thereof; convicted him thereunder and sentenced him as already stated. Hence, this appeal by Crl. Appeal No.651 of 2000 -9- the aggrieved appellant. 7. It is vehemently contended before me by Advocate Sri.B.Raman Pillai the learned counsel for the appellant that the case is one which is falsely foisted against the appellant by PW1 giving wrong information to PW9 maliciously with a view to harass and spoil the official career of the appellant; that the evidence will show that mutation has already been effected in the Thandapper in the names of four children of PW1 in whose names was document Nos.2154 and 2155 of Konni Sub Registry Office got executed on 16/07/97; and that delivering an amount of Rs.300/- to the appellant telling him that it is donation which he offered to pay for the independence day celebrations as was demanded by the appellant on the directions from the Tahsildar, the appellant was being trapped making the vigilance officials to understand that the amount that he was so making payment of was amount by way of illegal gratification Crl. Appeal No.651 of 2000 -10- for taking action on his application for effecting mutation. 8. It is also contended by him though feebly that Ext.P11 sanction issued by PW5/the District Collector, Pathanamthitta for prosecuting the appellant is without due application of mind and without satisfying himself as to the necessity to give sanction and further that the sanction granted vide Ext.P11 is to prosecute the appellant for offence under Section 7 and under Section 13(1)(a) read with Section 13(2) of the P.C Act and not for prosecuting him also under Section 13(1)(d) read with Section 13(2) thereof along with Section 7 for which is the charge framed by the court below and the conviction entered into. 9. The argument that sanction was being granted by PW5 without applying his mind as regards the necessity to grant sanction is untenable in the light of the evidence furnished by PW5 and the wording of Ext.P11 Crl. Appeal No.651 of 2000 -11- sanction order. It is true, however, that sanction granted was inter alia for prosecuting the appellant for offence under Section 13(1)(a) and not for 13(1)(d). It is rightly contended by the Public Prosecutor that by framing a charge for offence under Sections 13(1)(d) read with Section 13(2) of the P.C Act in the place of Section 13(1)(a) read with Section 13(2) for which Ext.P11 sanction was granted, no prejudice at all is caused to the appellant as Section 13(1)(d) though is an offence of criminal misconduct which is a different offence is based on the same set of facts which attract punishment under Section 7 of the Act and further that offence under Section 13(1)(d) is a lesser offence than offence under Section 13(1)(a). 10. It is also urged by the Public Prosecutor that in view of Section 19(3) of the P.C Act the conviction and sentence passed by the Special Judge is not liable to be reversed unless this Court is of the opinion Crl. Appeal No.651 of 2000 -12- that by reason of any error or irregularity in the sanction or even on the ground of absence of sanction in any particular case a failure of justice has in fact occasioned. On an appreciation of the facts of this case, it cannot be found that any prejudice or any failure of justice has occasioned on account of a conviction entered into for offence under Section 13(1)(d) read with Section 13(2) of the P.C Act when sanction has been accorded by PW5 under Ext.P11 order for prosecution inter alia for offence under Section 13(1)(a) read with Section 13(2) of the P.C Act. In answer to the contentions advanced by the counsel for the appellant, learned Public Prosecutor Sri.P.Ravindra Babu further contends that this is a case in which a successful trap beyond the pale of controversy stands established and therefore, the burden is on the appellant to prove as to how the amount received by him is not by way of illegal gratification or for unjust gain for himself. Crl. Appeal No.651 of 2000 -13- 11. To appreciate the case in the proper perspective the totality of the evidence that has been adduced in the court below requires a re-apprisal by this Court as the first Appellate Court. PW1 is the de facto complainant. He has proved Ext.P1 as true and correct statement given by him to PW9 at the vigilance office, Pathanamthitta after hearing the entire Ext.P1 statement being read over to him. According to him, when he approached the appellant for the first time to have mutation effected in relation to properties purchased by him in the names of his children under Exts.P2 and P3, the appellant dissuaded him stating that it can be done only after resurvey; that consequently, he enquired of the matter to one Komalavalli who is residing near his house and who is employed in the Taluk office and thereupon, she told him that what is informed to him by the appellant is incorrect and that re-survey is not necessary to effect mutation. According to PW1, he again Crl. Appeal No.651 of 2000 -14- approached the appellant and informed him that Komalavalli employed in Taluk office has told him that there is no ban in effecting mutation till resurvey is complete and then the appellant retorted that he may ask Komalavalli to do it for him. It is his further case that the appellant also told him that if mutation is to be effected an amount of Rs.500/- has to be paid to him and then he told the appellant that he is not having sufficient cash as his daughter's marriage is to take place and he delivered four numbers of currency notes of Rs.50/- denomination to the appellant and that was received by him and the appellant told him that papers are to be got down from Taluk office and while getting down those papers he should pay the balance Rs.300/- as well and thereupon, mutation can be effected. According to PW1, he got down papers from the Taluk office and when he met the appellant, the appellant told him to entrust it at the office and to come the next day and it was therefore, Crl. Appeal No.651 of 2000 -15- that on the next day he gave Ext.P1 F.I.Statement at the vigilance office. PW1 does not say the date on which he met the appellant for the first time or the date on which he met the appellant a second time after collecting information from Komalavalli and paid Rs.200/- to the appellant. From his statement as PW1, it can be understood that he was delivering the papers obtained from Taluk office at the office of the appellant the day previous to the date on which he gave Ext.P1 statement to PW9. Ext.P1 statement was being given on 23/09/97 and obviously, therefore, according to him, he was approaching the appellant at his office with the papers received from the Taluk office only on 22/09/97. There is absolutely no lack of clarity in the said statement. It is thus, giving Ext.P1 statement before PW9 that he surrendered three currency notes of Rs.100/- denomination before PW9 for being used for effecting trap of the appellant. To the Crl. Appeal No.651 of 2000 -16- specific question in cross examination that the applications for effecting mutation were dealt with appropriately in the village office and after completing all work that is expected to be done at the village office it had been forwarded to the Taluk office on 12/08/97 itself, PW1 had answered that he is not aware. Further, when it was specifically put to him that on 19/09/97 sanction was granted from the Taluk office to effect mutation, he has answered that he is not aware. Again to the question as to whether the work at the village office when sanction for effecting mutation is ordered by the Taluk office is only to record the same in the records in the village office, the appellant has pleaded ignorance. In cross examination, he has further stated that the incident has occurred within one week of purchasing the properties. When he was asked as to whether the documents were not being got executed on 16/07/97 he pretends that his memory fails him. PW1 has categorically stated Crl. Appeal No.651 of 2000 -17- that it is after registration of this crime that property tax was paid and asserts that it is incorrect to say that tax was remitted on 12/08/97 itself. Ext.D1 shows that tax was paid by PW1 under the patta of the executant of Exts.P2 and P3 namely patta No.6329 on 12/08/97 and that is for the period from 1996 and 1997; and the amount paid is Rs.35/- and that is so endorsed also on the reverse of Ext.D2. In fact, PW1 has no case that he remitted the tax due on the property and made payment of tax up to date to enable mutation being effected. PW1 added after saying that he has not remitted the tax on 12/08/97 that the vigilance officials were paying tax obtaining receipt and giving it to him. By no stretch of imagination can the stand taken by PW1 be believed for a moment and the fact that tax is paid on 12/08/97 after purchase of the property on 16/07/97 stands established by Exts.D1 and D2 which is not assailed at all. PW1 has asserted in cross examination that Crl. Appeal No.651 of 2000 -18- Rs.500/- was being demanded by the appellant by way of illegal gratification, but he says that he does not remember the date on which such a demand is made nor does he remember the date on which Rs.200/- was paid to the appellant. In Ext.P1 F.I.statement, PW1 has stated that the property purchased by him was one acre and ten cents and that the request made by him to the appellant who was village officer of Malayalappuzha village office was to effect mutation in his name of so much extent. This tallies with the version given by the appellant in 313 statement that the property purchased was not 1.10 acres but was only 70 cents altogether under Exts.P2 and P3; and what PW1 wanted was to have mutation effected in his name and for 1.10 acres of property whereas the documents Ext.P2 and P3 were in the names of the children of PW1 and for a total extent of 70 cents only. In Ext.P1 F.I.statement also PW1 does not say the date on which Rs.200/- was paid. But however, it is Crl. Appeal No.651 of 2000 -19- obvious that the said payment stated by him was prior to the marriage of his daughter as the shortage of funds with him was being attributed to the proposed marriage of his daughter. His daughter's marriage, according to him, was on 06/09/97 and he went to the village office thereafter on 19/09/97 and it was then that the appellant wanted him to get down papers from the Taluk office and to deliver it along with Rs.300/-; and that on the same day by 3.00 p.m. he obtained papers from the Taluk office and delivered it to the appellant. According to Ext.P1 statement, it was then, namely on 19/09/97 that the appellant told him to bring Rs.300/- more and that then he told the village officer that he will come over on Tuesday namely on 23/09/97 on which day was he giving Ext.P1 F.I.statement before PW9. Certainly, this version in Ext.P1 that on 19/09/97 the appellant demanded Rs.300/- and thereupon, he stated that he will come over on 23/09/97 does Crl. Appeal No.651 of 2000 -20- not reconcile with the statement of PW1 that it was on the day previous to his giving Ext.P1 F.I.statement that the demand was made by the appellant to come on the next day with Rs.300/- as in that event the demand must be on 22/09/97. 12. It is worthy to note in this context that the case of the prosecution is that amount was demanded from PW1 by way of illegal gratification for effecting mutation on Exts.P2 and P3 applications made by him. The evidence tendered by DW1/the Village Officer of Malayalappuzha village who had been summoned to produce certain documents shows that as per orders in “pokkuvaravu” cases 92/97 and 93/97 namely Exts.P2 and P3, mutation has been effected of the property covered by document Nos.2154 and 2155 of Konni Sub Registry Office on 19/09/97 and the relevant entries in the “thandapper” account is marked as Ext.D2. The said statement of DW1 is not assailed at all in cross examination. Crl. Appeal No.651 of 2000 -21- Ext.D2 shows that it is in relation to “thandapper” account No.6329 in the name of Beenakumari the executant of document Nos.2154 and 2155 aforesaid. The entry therein shows that as per orders in P.V.92/97 and 93/97 viz. Exts.P2 and P3 proceedings mutation has been effected and the property of seventy cents covered under those documents have been transferred from “thandapper” account No.6329 of “thanadapper” account Nos.8867, 8868, 8869 and 8870. When the mutation so effected on 19/09/97 is established on the evidence of DW1 and that is not challenged at all in cross examination of DW1, it is futile to contend on the side of the prosecution that the appellant demanded illegal gratification for effecting mutation. 13. PW4 has also given evidence regarding the procedure to be followed in effecting mutation on sanction being accorded from the Taluk office. He has stated that immediately on sanction being accorded by the Taluk office Crl. Appeal No.651 of 2000 -22- it will be entered in the “thandapper” accounts and what we see from Ext.D2 is that it is accordingly entered in the “thandapper” accounts. 14. It is vehemently contended by the Public Prosecutor that illegal gratification can be also an amount that is promised to be paid and it need not be that it must be paid prior to getting a thing done for which was the illegal gratification demanded. According to him, receipt of amount after doing the act is receipt of a reward and that also attracts offence under Section 7 of the P.C. Act. The technicality of the argument does not apply to the facts of this case as it is the definite case of the prosecution on the basis of the complaint lodged by PW1 that the appellant demanded illegal gratification for effecting the mutation and it is not that he wanted a promise that he would be paid and accordingly, he effected mutation. When there is a definite case for the prosecution, the prosecution has Crl. Appeal No.651 of 2000 -23- to stand or fall on the case so set up and it cannot be heard from the prosecution that if the receipt of cash is not shown to be motive for doing an act it can be taken that it is a reward received after doing an act:- in the instant case the act of effecting mutation. 15. It appears from the circumstances that as contended by the appellant the grievance of PW1 was that mutation was not effected also in his name and further that mutation was effected only for seventy cents and not for 1.10 acres as that is the case disclosed in Ext.P1 F.I.statement as the case in Ext.P1 F.I.statement given by PW1 is that he purchased 1.10 acres of land and approached the appellant to have the mutation effected of