IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 CRL.A.No. 62 of 2002() ---------------------- CC.4/2000 of SPECIAL JUDGE, (SPE-CBI)-I, ERNAKULAM .................... APPELLANT(S): ACCUSED --------------------- K.V.DANIEL, FORMER STATION ENGINEER, DOORDARSHAN MAINTENANCE CENTRE,KANNUR. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. THE SUPERINTENDENT OF POLICE, (CBI/SPE), COCHIN -17 REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.K.P.SATHEESAN, SC FOR CBI FOR R1 SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5/1/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------- Crl.A.NO.62 OF 2002 ------------------------------- Dated 5th January, 2011 JUDGMENT Appellant who was working as Station Engineer in Dooradarshan Maintenance Centre, Kannur, the accused in C.C.4/2000 on the file of Special Judge, (SPE-CBI)-I, Ernakulam filed the appeal challenging his conviction and sentence for the offences under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. 2. Prosecution case was that PW2 was working as Engineering Assistant at the Lower Power Transmitter Dooradarsan Relay Centre, Kanhangad. Appellant was the Station Engineer in Dooradarshan Maintenance Centre, Kannur. Cra 62/02 2 L.P.T.Dooradarshan Relay Centre, Kanhangad is under the Dooradarshan Maintenance Centre, Kannur which in turn was under Dooradarshan South.PW2 was originally working as Engineering Assistant at Dooradarshan, Delhi. While working there, he had applied for a house building advance(in short H.B.A) for Rs.1,00,000/-. It was sanctioned. When there was a pay revision of the salary PW2 sought enhancement of the HBA. Rs.3,77,500/- was sanctioned. First instalment of Rs.1,88,750/- was sanctioned to PW2 after he was transferred to Kanhangad. It is received by PW2 on 30/3/1999 evidenced by Ext.P5 acquittance register. On 20/4/1999 PW2 applied for the second instalment. Under Ext.P7, the said application was forwarded to the appellant by PW10, the Assistant Engineer of L.P.T Dooradarshan Relay Centre, Kanhangad. Cra 62/02 3 It is for the appellant to forward that application to Dooradarshan, Delhi. Prosecution case is that appellant demanded bribe of Rs.1,000/- from PW2 to forward the application. It is alleged that on 5/5/1999, PW2 went to Dooradarshan Maintenance Centre, Kannur and distributed sweets for receiving the first instalment and at that time itself appellant asked him whether he is to satisfy with the sweets alone. It is alleged that when PW2 contacted appellant he sought to arrange conveyance at the expense of PW2 to inspect the progress of construction work. When PW2 requested appellant to come by train, promising to arrange conveyance from Chalakudy to Cheranellur where the building is being constructed, appellant agreed for the same. PW2 was informed that appellant will inspect Cra 62/02 4 the site on 9/5/1999. According to the prosecution, when PW2 along with PW3, brother- in-law waited at the railway station, appellant reached the house of PW2 by the official vehicle driven by PW7 and on getting that information, Pws.2 and 3 reached the house. Appellant conducted the inspection and discussed the matter and wanted PW2 to furnish a copy of the building plan. It is alleged that when appellant was about to board the vehicle, he called PW2 to a nearby place and under the shadow of a tree demanded a bribe of Rs.1,000/-. PW2 discussed the matter with family members and decided to inform the CBI. He met the S.P of CBI and submitted Ext.P9. S.P sent it to PW12 the Dy.S.P who registered Ext.P36 FIR as instructed by Superintendent of Police. PW12 decided to take steps to arrange Cra 62/02 5 the trap. He constituted a team consisting of inspectors as PW2 was prepared to associate with the proposed trap. They proceeded to Kannur by Thiruvananthapuram-Kannur express on 25/5/1999. PW12 along with the inspectors went to State Bank of India, Fort Road Branch, Kannur and requested the Chief Manager to provide two officials to be responsible witnesses for the proposed trap. PW4, K.P.Ratnakaran, who was working as Assistant Manager and Mohanan another officer of the Bank were directed to assist PW12. 3. Along with PW4 and Mohanan the team reached rest house, Kannur and introduced PW4 and other to PW2. Thereafter, the procedure to be followed, as well as the procedure of applying phenolphthalein powder and its effect were explained to PW2 in the presence of PW4 Cra 62/02 6 and Mohanan by exhibiting it. MO.2 currency notes furnished by PW2 was smeared with Phenolphthalein powder and handed over to PW2, to be given to the appellant when he demands bribe. PW2 was also instructed to give a prearranged signal by wiping his face with a handkerchief on the appellant accepting the bribe. Pws.2 and 4 proceeded from the rest house to the office of the appellant in an autorickshaw, followed by PW.12 and others. PW2 accompanied by PW4 entered the office of the appellant. PW4 watched it from outside. PW2 kept the bag containing the tainted currency notes to be given as bribe, at the varandha and entered the room where appellant was sitting. PW4 watched from outside what transpires inside the room by peeping through the gap of the door and door frame. Cra 62/02 7 Prosecution case is that after PW2 entered the office and explained to the appellant that he brought copy of the plan, it was received by the appellant. Appellant asked him whether it is the same plan which was shown to him at the building site. PW2 answered it in the affirmative. After verifying the plan when PW2 sought permission to leave, appellant asked him whether he brought the amount of Rs.1,000/- which was demanded earlier. PW2 explained to the appellant that he is a poor man and whether appellant really wants the money. When appellant insisted for the money, PW2 went outside and from the corridor where the bag was kept, took the tainted money which was entrusted to him earlier by PW12 and thereafter went near to the appellant and handed it over to the appellant. Appellant received it with Cra 62/02 8 right hand and shifted it to his left hand and slipped the cash into his left side pocket of his shirt. Appellant asked him to write an application and submit it in the office along with the plan and estimate. Appellant took the plan and estimate from the table and proceeded towards administrative section. He gave the prearranged signal to PW12. PW12 rushed there and introduced himself to the appellant and asked whether he accepted bribe from PW2. When he answered in the negative, PW12 asked PW2 where appellant kept the money received from him as bribe. When PW2 explained that he had taken bribe with his right hand and shifted to his left hand and then put it in his left pocket of his shirt, PW12 prepared the Sodium Carbonate solution and asked appellant to dip his hand in the solution. When the right hand Cra 62/02 9 finger was dipped, the solution turned pink. Appellant was thereafter asked to dip his left hand and that lime water also turned pink. When PW12 asked the appellant where he kept the money, appellant disclosed that he then put it in the left pocket of his pants. Suresh Babu, Accountant of the Dooradarshan Centre, Kannur took the money from the pant pocket of the appellant as instructed by PW12. When numbers of the currency notes were cross checked with those mentioned in Ext.P10 pre-trap mahazar prepared earlier, it was found that they are the same currency notes. Ext.P11 mahazar was prepared noting the details of the procedure followed. Thereafter appellant was arrested. He was released on bail. After completing the investigation, final report was laid before Cra 62/02 10 Special Judge, (SPE-CBI)-I, Ernakulam. It was taken cognizance for the offences under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. 4. Appellant pleaded not guilty when the charge was framed, read over and explained to him. Prosecution examined 13 witnesses and marked 39 exhibits and identified ten material objects. When the prosecution witnesses were examined, Ext.D1 mortgage deed executed by PW2 for availing the HBA, was marked. After questioning the appellant under Section 313 of Code of Criminal Procedure, he was asked to adduce defence evidence if any. Appellant thereafter marked Exts.D2 to D5 and examined DW1. 5. Learned Special Judge on the evidence found the appellant guilty. He was Cra 62/02 11 convicted and sentenced for rigorous imprisonment for two years and fine of Rs.25,000/- and in default rigorous imprisonment for three months for the offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and rigorous imprisonment for two years for the offence under Section 7 of Prevention of Corruption Act. The substantive sentences were directed to run concurrently. 6. Learned Senior counsel appearing for the appellant and learned Standing counsel appearing for the respondent were heard. 7. Argument of the learned Senior counsel is that the trial court did not properly appreciate the evidence and should not have relied on the evidence of PW2 and PW4. It was argued that evidence establish that staff Cra 62/02 12 members including PW2 were on inimical terms with the appellant, as he was a very strict and disciplined officer which was not liked by the staff members and their union. It was argued that memos were issued to PW2 and the strike conducted by the union did not succeed due to the timely action of the appellant and consequently the union and its members have a grudge against the appellant and it was in such circumstances, a false case was foisted. It was argued that evidence of PW2 that appellant demanded Rs.1,000/- for forwarding the application for allotment of second instalment due to PW2 under HBA cannot be believed in the light of the evidence. It was argued that the case projected in Ext.P9 statement furnished by PW2, based on which crime was registered, was developed when the investigation started Cra 62/02 13 and PW2 was examined and from the nature of the evidence tendered it is highly improbable and cannot be believed. Learned Senior counsel pointed out that there is no acceptable and reliable evidence to prove the demand for bribe either from the office of the appellant at Kannur or from the house of PW2, when appellant admittedly gone there to conduct inspection in view of the application submitted by PW2 for allotment of second instalment of HBA. Learned Senior counsel vehemently argued that evidence of PW4 is most artificial and cannot be believed at all, as it cannot be believed that an officer like PW4 would peep into the room from the corridor of a public office and on the evidence his evidence as to what transpired inside the room of the appellant, when PW2 Cra 62/02 14 allegedly paid the bribe cannot be believed. It was argued that claim of PW4 that he could see what transpired inside the room by peeping through the gap in between door and door frame is also highly improbable. Learned Senior counsel argued that if the evidence of PW4 is disbelieved, there is no evidence to corroborate the demand made by the appellant or the alleged payment or acceptance of bribe by the appellant. It was argued that though possession of Mo.2 series of currency notes in the pant pocket worn by the appellant was admitted, appellant explained the said possession and there is no reason to disbelieve that version. It was pointed out that admittedly PW5 participated in the strike and during the strike day to get the cheque issued from south zone office at Chennai due Cra 62/02 15 to Pws.2 and 8, the Personal Assistant of the appellant, PW5 was sent to Chennai. As he was participating in the strike, he did not claim any TA or DA. PW5 was sent to Channai as PW2 and PW8 agreed to share the expenses. When PW5 reported to the appellant that PW2 did not pay the expenses, appellant asked PW2 to pay the same and he promised to pay it. On the day when the trap was laid, PW2 came to the office along with the plan. After showing the plan, appellant asked him to provide additional security, as Ext.D1 the original mortgage furnished was only for Rs.1,00,000/-, and hence additional security for Rs.2,77,500/- is to be furnished. PW2 was asked to hand over copy of the plan with a letter at the administrative office. PW2 went outside. He then returned back and disclosed that PW5 is Cra 62/02 16 not in his seat to pay the expenses. According to the defence case, PW2 disclosing that PW5 is not in his seat, handed over MO.2 series of cash to the appellant for paying it to PW5. Appellant did not receive it and instead asked him to place the cash on the table. PW2 put it there and went out. It was the case that at that point of time, PW12 and others who were strangers suddenly entered the room. As the cash was on the table, appellant put it in his pant pocket. Thereafter appellant was asked to whether he received the money from PW2 and produced the said cash. It was argued that it was not acceptance of any bribe and therefore, when there is no evidence for the demand for bribe or payment of bribe or acceptance of bribe, the conviction is not sustainable. Learned Senior counsel further argued that if Cra 62/02 17 the evidence of Pws.2 and 4 are properly appreciated, their evidence cannot be believed and when Exts.D2 to D4 establish that there was union rivalry against the appellant as he is a strict officer, it should have been found that the case was foisted falsely and appellant is not guilty of the offences. 8. Learned Standing Counsel argued that learned Special Judge appreciated the evidence in the proper perspective and there was no explanation for possession of the tainted money by the appellant, when PW12 recovered the same or even when PW2 was cross examined. It was argued that even when Pws.5 and 8 were examined, there was no case for the appellant that PW2 had agreed to pay the expenses to PW5 either fully or partly, to bring the cheque from Chennai and the case subsequently Cra 62/02 18 projected at the time of questioning under Section 313 of Code of Criminal Procedure as a result of afterthought and it cannot be believed at all. Learned counsel also pointed out that evidence of PW2 was fully corroborated by the evidence of PW4 and evidence of PW4 establish that he could see what transpired inside the room through the gap in the door frame and door and even PW7, the driver of the vehicle in which appellant had travelled to Cheranellur for inspection of the building site corroborate the evidence of PW2 that appellant called PW2 separately and talked for some time, which proves the evidence of PW2 that appellant demanded bribe at that time. Learned Public Prosecutor pointed out that when learned Special Judge who had occasion to note the demeanor of the witnesses, appreciated Cra 62/02 19 the entire evidence in the proper perspective, theres is no reason to disbelieve the evidence and hence the conviction and sentence is only to be confirmed. 9. Fact that PW2 applied for HBA while working at New Delhi and the claim was subsequently enhanced, due to pay revision and Rs.3,77,500/- was sanctioned as HBA to PW2 are not disputed. By Ext.P2 order, first instalment was sanctioned. When the cheque for the amount was ready at the south zone centre, Chennai, employees of Dooradarshan at Kannur were on strike. It is also not disputed. It is the case of the appellant also that cheques due to PW2 and PW8 were ready at Chennai and PW5 was deputed to receive the cheques from Channai. PW5 brought the cheques and as evidenced by Ext.P5 the amount due to Cra 62/02 20 PW2 was disbursed on 30/3/1999. It is thereafter PW2 applied for the second instalment of HBA on 20/4/1999. Ext.P6 application was forwarded from L.P.T. Dooradarshan Relay Centre Kanhangad to Dooradarshan Maintenance Centre, Kannur. It is for the appellant to forward that application to Delhi. It is for the appellant to get himself satisfied that first instalment disbursed was properly utilised and construction is proceeding. Appellant wanted to inspect the building site for that purpose. It is admitted case that on 9/5/1999 appellant reached the site, where PW2 was constructing the building. It is also admitted by the appellant that he had been in the house of PW2 and had taken meals from there and left the site only in the afternoon. It is the case of Cra 62/02 21 PW2 that when PW2 had met appellant earlier at Kannur, he demanded bribe of Rs.1,000/-. When the appellant inspected on the site on 9/5/1999, while he was about to board the vehicle, appellant called PW2 separately and demanded that Rs.1,000/- to be paid at his office at Kannur. Though there is no corroborative evidence to prove said demand, as PW2 has no case that anybody else had heard the demand, evidence of PW7, the driver of jeep in which appellant reached the building site, corroborates the evidence of PW2 to the extent that when appellant was about to board the vehicle, he called PW2 alone and talked for some time. Though PW7 did not hear what they were talking, evidence of PW7 corroborates to an extent the evidence of PW2 that appellant had called him and had a private Cra 62/02 22 talk. Appellant has no case that the said private talk relates to any other matter. If it was not regarding an illegal demand for bribe there was no need for the appellant to have a secret talk. When evidence of PW2 is appreciated in the proper perspective, especially in the light of the admission of the appellant that MO.2 tainted currency notes were in his pant pocket, when PW12 entered his room, I find no reason to disbelieve the evidence of PW2 with regard to the said demand. 10. Evidence of PW2 and PW12 establish that PW2 submitted Ext.P9 complaint regarding the demand for bribe before Superintendent of Police who called PW12 and directed to register a case and investigate as per endorsement made in Ext.P9. Evidence of PW2 and PW12 further Cra 62/02 23 establish that PW12 enquired with PW2 whether he is prepared to co-operate with arranging trap and PW2 agreed for the same. Evidence of Pws.2 and 4 and 12 establish that PW2 and PW12 reached Kannur and sought and obtained assistance of PW4 and Mohanan and then explained the procedure to be followed and result of application of phenolphthalein powder to PW2. It also establishes that PW2 provided MO.2 series of currency notes to be given to the appellant on demand and Ext.P10 pre-trap was prepared showing the details of the procedure followed before proceeding to the office of the appellant. Ext.P10 the contemporaneous record corroborates the evidence of Pws.2,4 and 12 on that aspect. 11. Evidence of Pws.2,4 and 12 corroborated by Ext.P11 post trap mahazar, Cra 62/02 24 prepared after completing trap establish that Pws.2 and 4 proceeded in an autorickshaw followed by PW12 and the CBI party. Evidence of Pws.2 and 4 prove that while PW4 watched from the corridor, PW2 entered the room of the appellant after keeping his bag, which contained MO.2 series of phenolphthalein smeared currency notes on the varandha. Evidence of PW2 was corroborated by the evidence of PW4 who witnessed and heard what transpired inside by peeping through the gap of door frame and door. Learned Senior counsel argued that that evidence of PW4 is most artificial and cannot be believed. It was pointed out that in front of the door of room of the appellant, there is a corridor and just to the opposite is the room of PW8, the Personal Assistant and nobody could stand in Cra 62/02 25 the corridor and peep into the room with immunity as claimed by PW4, as it is a public office. It was argued that evidence of PW2 establish that DW1 the peon had entered the room of the appellant while PW2 was inside the room and if PW4 was waiting outside and peeping into the room through the gap, DW1 would have definitely seen PW4 and evidence of DW1 establishes that he did not see PW4 in the corridor and hence evidence of PW4 cannot be believed. Learned Senior counsel also pointed out that if the evidence of PW4 is to be believed, he was standing outside the room and peeping through the gap for some time and then proceeding to the room of the Personal Assistant and then again returning back to the room and peeping and the process was being repeated and these are most improbable and Cra 62/02 26 unbelievable. Learned Senior counsel also argued that as PW2 did not pay the expenses due to PW5, who had gone to Chennai to collect the cheque payable to PW2 without claiming any TA and DA, and PW5 complained to the appellant that PW2 did not pay the expenses, he had asked PW2 to pay the expenses and on that crucial day when PW2 disclosed that PW5 was not in his seat and requested appellant to receive the money and to pay the same to PW5 he asked PW2 to keep the money on the table and when PW12 and others who were strangers suddenly entered the room, as the money was on the table, appellant kept it in his pant pocket and that act cannot be treated as acceptance of bribe. Question is whether the evidence of PW1 and PW4 are trustworthy and believable and whether explanation of the appellant for acceptance Cra 62/02 27 and possession of MO.2 series of tainted currency notes is acceptable. 12. When PW2 was examined, he deposed that appellant demanded Rs.1,000/- on 5/5/1999 when PW2 came to the office of the appellant he demanded a bribe of Rs.1,000/- and on 9/5/1999 appellant insisted for payment of the money when appellant inspected the work site and after arranging the trap, PW2 entered the room of the appellant on 25/5/1999 at about 11.15 a.m and after showing the plan when PW2 sought permission to have, appellant repeated the demand. His case is that as the bribe was again demanded PW2 came outside and took money from the bag which was kept on the corridor and went back to the room of the appellant and MO.2 series of notes were handed over to the appellant, who received them in his right Cra 62/02 28 hand and thereafter shifted them to his left hand and put them in his shirt's left pocket. Appellant had no case when PW5 was examined that he promised PW5 that he will see that appellant would pay the expenses either to be incurred or incurred by PW5 for bringing cheques from Chennai to Kannur. PW2 was not even asked whether he has not agreed to pay the expense of PW5 or that he is bound to pay the expenses. There was not even a suggestion that the tainted money which was paid by PW2 and accepted by the appellant, on the representation of PW2 that PW5 was not in his seat and therefore, requested appellant to pay the same to PW5. Appellant has also no case that appellant directed PW2 to place the cash on his table or that PW2 kept MO.2 on the table as asked by him. When PW5 was examined Cra 62/02 29 appellant had no case that he offered to direct either PW2 or PW8 to pay the expenses to PW5 to go to Chennai and receive the cheques due to PW2 and PW8. There was not even