IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 CRL.A.No. 1614 of 2003(Y) ----------------------------------- CC.38/1998 of SPL.COURT SPE/CBI-II , ERNAKULAM .................... APPELLANT(S): ACCUSED NO.3 ---------------------------------------------- P.V.THANKACHAN, S/O.SKARIAH VARGHESE, ASST. EXECUTIVE ENGINEER, (ELECTRICAL), AIRPORT THIRUVANANTHAPURAM. BY ADVS. SRI.J.JOSE SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S): COMPLAINANT ------------------------------------------------ Y.CHELLATHURAI, DY.SUPERINTENDENT OF POLICE, C.B.I. CHENNAI. BY PUBLIC PROSECUTOR SRI.CHANDRASEKHARAN PILLAI SRI.S.SREEKUMAR, SC FOR CBI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2011, ALONG WITH CRA NO. 1615 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss (CR) P.S.GOPINATHAN, J. ========================== Crl.A. Nos. 1614 & 1615 of 2003 ========================== Dated this the 31st day of March, 2011. COMMON JUDGMENT The appellants are the second and third accused in C.C No.38/1998 on the file of the Special Judge (SPE/CBI)-II, Ernakulam. They were prosecuted by PW13, the Deputy Superintendent of Police, CBI, alleging offences under Section 120B IPC r/w Section 7 and 13(1) (d) of the Prevention of Corruption Act (for short hereinafter referred to as 'the PC' Act) and under Section 7 of PC Act r/w Section 34 IPC and Section 13(2) r/w 13(1)(d) of PC Act r/w 34 IPC, along with deceased Kamal Siddique as the first accused. Before framing charge, the first accused left to his heavenly abode. So, the appellants alone were prosecuted. The learned Special Judge on appraisal of the evidence on record arrived at a conclusion of guilt. Consequently, the appellants were convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.3,000/- each with a default sentence of simple imprisonment for a Crl.A. Nos. 1614 & 1615 of 2003 2 further period of one month for offence under Section 120B IPC r/w Section 7 and 13 (1) (d) of the PC Act. For the offence under Section 7 of the PC Act r/w Section 34 IPC, they were similarly sentenced. For offence under Section 13(2) r/w 13(1)(d) of the PC Act r/w Section 34 IPC, they were sentenced to rigorous imprisonment for one year and fine of Rs.5,000/- with a default sentence of simple imprisonment for a further period of two months. Now these appeals. 2. The prosecution case in brief is that deceased Kamal Siddique (A1) and the second accused were working as Executive Engineer (Electrical) and third accused was working as Assistant Engineer (Electrical) in Airport Authority of India, Thiruvanandapuram, during the year 1997-1998. PW1, A. Rajan, proprietor of M/s.Ajantha Electricals and P.A. Equipments was an electrical contractor in Airport Authority of India and he was awarded five work contracts as per agreement No.6, 10, 22, 44 and 57 from 12.6.1995 for various amounts. Though Crl.A. Nos. 1614 & 1615 of 2003 3 PW1 had completed the execution of the work and submitted bills, payment were not effected. On 6.4.1998, PW1 met accused one to three in the office of the first accused and requested for payment of bills. The first accused, according to the prosecution, in pursuance to the criminal conspiracy between the accused demanded illegal gratification of Rs.20,000/- each to accused one and two; and Rs.10,000/- to the third accused, to be paid on or before 16.4.1998. When PW1 informed that he was in financial difficulties, it was stated that except one bill all other bills would be passed and after encashing the passed bills, PW1 could make payment on 16.4.1998. The accused also stated that they would help PW1 in future work contracts. On 15.4.1998, PW1 received a cheque for Rs.61,192/- regarding the works executed as per agreement No.44. On that day PW1 again met the accused one to three in the office of the first accused and enquired about his other bills. The accused reiterated the earlier demand for illegal Crl.A. Nos. 1614 & 1615 of 2003 4 gratification and their offer and asked to pay the demanded amount positively on 16.4.1998. Being aggrieved by the demand, PW1, complained to the CBI Unit, Thiruvananthapuram on 15.4.1998 by Ext.P1 complaint on the basis of which a case as Crime No.R.C.5(A)/98/KER was registered for offence under Section 7 of the PC Act r/w Section 34 IPC by Ext.P59 First Information Report. After registering the case, PW1 was asked to report before the office on the next day along with Rs.50,000/-, the bribe amount. Accordingly, PW1 withdrew a sum of Rs.50,000/- from his overdraft account, the copy of which was marked as Ext.P42 and reported before PW6, the Inspector, CBI. PW6, arranged three independent witnesses of whom two were examined as PWs.4 and 5. PW6, then demonstrated phenolphthalein test after introducing PW1 to PW4 and 5 and other independent witnesses and vice-versa. The currency notes brought by PW1 were having serial No.9 AK 240401 to 240500. PW6 got that amount from PW1. All the currency notes were Crl.A. Nos. 1614 & 1615 of 2003 5 smeared with phenolphthalein powder and currency notes bearing Sl.No.9 AK 240401 to 240440 were entrusted back to PW1 to keep it in the pocket of his shirt for being paid to the first accused on demand. The next 40 currencies bearing No.9 AK 240441 to 9 AK 240480 were also given to PW1 to be kept in the right side pocket of the pants for being paid to the second accused on demand. Remaining 20 currencies were also entrusted to PW1 to be kept in the left side pocket of the pants for being paid to the third accused on demand. PW5 was asked to accompany PW1. Thereafter, PW6 and the party along with independent witnesses and PW1 proceeded to the office of the accused. PW5 was sent along with PW1 with instruction to give signal by combing hair with hands on receipt of the amount by the accused. PW5 was also instructed to overhear the conversation between PW1 and the accused and to witness the handing over of the money. PW1 and 5 reached at the office of the accused at about 3.10 pm. Though accused one and two Crl.A. Nos. 1614 & 1615 of 2003 6 were in their room, the third accused was not found in the room. When a message was conveyed to PW6, PW1 was asked to wait for the arrival of the 3rd accused. A little later, the third accused arrived in his room and suddenly went to accused one and two. From there, they all went out for some purpose. On the way, the first accused asked PW1, who he was standing in the corridor to wait till their return. At about 3.40 p.m., the second accused returned. He demanded money from PW.1. PW1 handed over the bribe money. It was accepted by the second accused. The second accused kept the same in the drawer of his table and locked. Thereupon the second accused took PW1 to the room of the first accused. PW5 also accompanied to that room. PW1 introduced PW5, to accused one and two as his new Supervisor. Following a direction given by the first accused, PW5 went out of the room. The first accused repeated his demand. PW1 gave the currency notes to the first accused. He accepted the same and put it in the pocket Crl.A. Nos. 1614 & 1615 of 2003 7 of his shirt on the left side. While receiving the amount from PW1, the first accused asked whether payment was made to the second and third accused. The second accused volunteered and told 'yes'. When PW1 told that he had brought money for the 3rd accused also, third accused was contacted by the 1st accused through intercom. Responding to the call, the third accused arrived at the room of the first accused. PW1 took out the currency notes and gave to the third accused who accepted the same and kept in the left pocket of his pants. Thereupon, PW1 came out and signal was given. PW6 along with the party, rushed to the room of the first accused. He disclosed his identity to the accused and introduced the other members of the team. PW1 prepared sodium carbonate solution and asked the first accused to dip his right hand. There was no response. PW6 asked the first accused to dip his left hand fingers in another glass of solution. Thereupon, the solution turned pink. PW6 asked the first accused about the bribe amount received Crl.A. Nos. 1614 & 1615 of 2003 8 from PW1. Responding to the enquiry by PW6, the first accused took out the currency notes from the pocket of the shirt and handed over to PW5 as directed by PW6. The currency notes were scrutinized with reference to Ext.P5 mahazar and found that the descriptions tally with the descriptions noted in Ext.P5. The sodium carbonate solutions were separately corked and sealed in bottles. PW6 then asked the second accused to dip his right hand in another set of solution. The result was negative. Then asked to dip the left hand fingers in the sodium carbonate solution. Thereupon the solution turned pink. When asked about the bribe amount the second accused stated that he had kept the same in the drawer of his table. The third accused was then asked to undergo phenolphthalein test. The test was positive on his left hand and negative on the right hand. When asked about the bribe amount the third accused took out the currency notes from the left side pocket of his pants and gave to PW5 as directed by PW6. The currency notes were compared with the Crl.A. Nos. 1614 & 1615 of 2003 9 descriptions given in Ext.P5 and found tallying. Thereupon, the second accused was taken to his room. The second accused opened the right upper drawer of his table with the key kept by him, took out the currencies and handed over to PW4 as directed by PW6. The description of the currencies were verified with reference to ExtP5 and found tallying. Phenolphthalein test was also conducted on the pocket of the shirt of the first accused as well as on the pocket of the pants of the third accused. The result was positive. Phenolphthalein solutions used for testing were separately corked and sealed in bottles. MO12 series are the currencies recovered from the first accused, MO13 series are the currencies recovered from the second accused and MO14 series are the currency notes recovered from the third accused. Ext.P6 mahazar was prepared then and there, wherein PWs.4, 5 and others are attesters. The accused were arrested by PW6. Thereafter, the body of the accused, the office room and residence were Crl.A. Nos. 1614 & 1615 of 2003 10 searched. From the drawer of the table of the first accused, a bill pertaining to agreement No.6 was recovered. Other articles searched out, being not required for the investigation and trial, were returned back to the accused. 3. PW13 took over the investigation. On completing the investigation the files were sent to PW11. PW11, a Member, Planning, Airport Authority of India, who is competent to appoint and remove the appellants from service issued Ext.P58 order according sanction to prosecute the appellants. After getting Ext.P58, PW13 laid the charge for the above said offences. The learned Special Judge took cognizance and issued process responding to which all the accused entered appearance. They were furnished with copies of the final report and connected records. It is thereafter the first accused expired. After hearing the appellants and on finding that there are materials to send the appellants for trial, a charge was framed for the said offences. When it was read over and explained, the appellants pleaded Crl.A. Nos. 1614 & 1615 of 2003 11 not guilty. Hence they were sent for trial. On the side of the prosecution PWs. 1 to 13 were examined. Exts. P1 to P68 and MOs. 1 to 23 series were marked. During the course of the cross examination, Ext.D1 to D14 were marked. After closing the evidence for the prosecution, the appellants were questioned under Section 313(1)(b) of the Code of Criminal Procedure. The second accused denied the incriminating evidence and further stated that he never demanded any money from PW1. Neither he accepted any money. He did not put any money in the drawer of the table. He was not provided with a separate room. The table had no lock. While he was sitting in his cabin, the CBI officers took him to the room of the first accused and he was detained there. He further stated that when his hand was put into the glass which had a solution, the CBI officers were holding his hand and their fingers also were dipped into the solution. Between PWs.1 and 9 (an Assistant Engineer), there was serious dispute. Though the second Crl.A. Nos. 1614 & 1615 of 2003 12 accused attempted to solve out the dispute, it was in vain. When the matter was brought to the notice of the first accused, PW9 was assaulted by PW1. It was also reported to the first accused. PW1 apprehended that there would be strong action against him. In order to wreak vengeance, he went to CBI and gave a false complaint and that not a single bill was pending payment in the Engineering Department. All the bills pertaining to agreement No.10, 22, 44 and 57 were sent long before 6.4.1998 and that fact was known to PW1. Once the bill was passed and sent to Finance Department, Engineers had no role and that the cheques were being issued from the Department of Finance. The second accused had further stated that the first accused told him that PW1 cheated the first accused on the pretext of returning the money borrowed by PW1 from the first accused for which he had given a card which was marked as Ext.D1. 4. The third accused also denied the incriminating Crl.A. Nos. 1614 & 1615 of 2003 13 evidence. He further stated that neither did he demand any money nor accepted from PW1. There was neither any recovery from his pocket. While he was sitting in his seat, he was called by the CBI officials and took him to the room of the first accused. His hands were dipped into a solution kept in a glass along with the hands of the CBI officer. He was not involved with the work relating to agreement No.6. The work in respect of the all other agreements were completed and the bills were forwarded to Finance Department before 6.4.1998 for payment and issuance of cheque. There was a complaint against PW1 for manhandling Babu Rajendra Prasad, who was examined as PW9 and who was in charge of the work relating to agreement No.6. The third accused seriously objected the same. Apprehending that the department would seriously take the issue, the complaint was lodged by PW1 before CBI and that PW1 had borrowed money from the first accused and in the pretext of returning the borrowed amount he was deceived. Though the appellants were Crl.A. Nos. 1614 & 1615 of 2003 14 called upon to enter their defence, no defence evidence was adduced. The learned special Judge, on appraisal of the evidence, as I mentioned earlier, arrived at a conclusion of guilt consequent to which the conviction and sentence under challenge. 5. The fact that the appellants(accused No.2 and 3) were the Executive Engineer, (Electrical) and Assistant Engineer (Electrical) employed in Airport Authority of India and as such they would come within the definition of public servant as defined under Section 2(c)of the PC Act is not at all disputed. On the other hand, their official status is admitted. The evidence of PW11 would show that he had gone through the records of the investigation and had accorded sanction to prosecute the appellants for which Ext.P58 order was issued. The admissibility and legality of Ext.P58 was not at all assailed. The conclusion of the learned Special Judge regarding the status of the appellants and that there was due sanction to Crl.A. Nos. 1614 & 1615 of 2003 15 prosecute them, in the above circumstances, require no interference and I hereby confirm the same. 6. Regarding the acceptance of the bribe from PW1 by the appellants the prosecution would rely upon the testimonies of PWs. 1 ,4, 5 and 6 coupled with Exts.P5 and P6 mahazers. PW1 had given evidence generally corroborating with the allegations in the final report regarding the demand, acceptance and recovery of MO12 series, MO13 series and MO14 series from all the three accused. PW4 was the Manager of the Canara Bank, Circle Office, Thiruvananthapuram. He had also given evidence in support of the evidence of PW1 regarding the recovery of MOs.12, 13 and 14 series from the pockets of accused one and three and from the drawer of the table of the second accused. PW5, a Sub Divisional Engineer in Telecom Department had also given evidence regarding the recovery of Mos.12, 13 and 14 series. PW6, the officer who had laid with trap had given evidence regarding the arrangements for trapping Crl.A. Nos. 1614 & 1615 of 2003 16 the accused, the production of the currency notes by PW1, the demonstration of the phenolphthalein test and trapping of the accused as well as the recovery of MO12, 13 and MO14 series. Ext.P5 and P6 corroborate with the above evidence. 7. Adv.Sri. B Raman Pillai, the learned counsel for the second accused and Adv. Sri J. Jose, the learned counsel appearing for the third accused would heavily assail the testimonies of the above witnesses and would argue that their evidence regarding the demand, acceptance, recovery and Ext.P6 mahazar are totally false, unbelievable and unreliable; and that the conviction and sentence under challenge are not at all sustainable. Ad.Sri.Jose, after reading the evidence on record in detail, canvassed my attention to certain discrepancies in the evidence of PWs.1, 4, 5 and 6 and further argued that no bill of PW1 was detained by the Engineering Department much less by the third accused and that PW1, being motivated, had falsely implicated the appellants. Both counsels appearing for Crl.A. Nos. 1614 & 1615 of 2003 17 the second and third accused, after referring to the decision reported in G.V.Nanjundiah v. State(Delhi Administration) [1988 Supreme Court Cases (Cri) 77], C.M.Girish Babu v. CBI [(2009) 2 Supreme Court Cases (Cri) 1], M.K.Harshan v. State of Kerala [AIR 1995 SC 2178], and Banarsi Dass v. State of Haryana [AIR 2010 SC 1589], would argue that there is utter failure on the side of prosecution to prove the demand, acceptance and recovery and that even if there is recovery that alone is not sufficient to arrive at a conclusion regarding the demand and acceptance of illegal gratification for obtaining undue pecuniary advantage by the appellants. On the other hand, Sri. Chandrasekharapillai, the learned standing counsel for the CBI would submit that there is no reason at all to disbelieve PWs.1, 4, 5 and 6 or to reject Ext.P6 and that there is sufficient evidence on record to arrive at a conclusion regarding the demand and acceptance of MOs.12, 13, and 14 series, totaling amounting to Rs.50,000/- from PW1 by accused 1 to 3 Crl.A. Nos. 1614 & 1615 of 2003 18 and that the acceptance of the money by the accused from PW1 would canvass presumption under Section 20 of the PC Act that it was demanded and accepted as illegal gratification for discharging the official duties and that the evidence on record would show that the bills pertaining to the works undertaken by PW1 were withheld by the accused and that the demand was made for clearing the bills. According to the learned standing counsel the bills submitted by PW1, since March 1997 were withheld and illegal gratification was demanded and accepted for passing the bills. Regarding that aspect, there is ample evidence on record coupled with the attendant circumstances. In support of his argument, the learned counsel relied upon the decisions in State of U.P v. G.K.Ghosh [AIR 1984 SC 1453] and M.Narasinga Rao v. State of A.P. (2001 SCC (Cri) 258). 8. In Nanjundiah's case(Supra) at paragraph 26, it is held: “ The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other Crl.A. Nos. 1614 & 1615 of 2003 19 material circumstance one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion.” It is a case in which referring to the evidence on record the Apex Court had come to a conclusion that the prosecution story is not at all believable. Consequently, the appeal was allowed and the appellants therein were acquitted. 9. In Girish Babu's case, (supra) the Apex Court referring to a decision in Suraj Mal v.State (Delhi Administration) [(1979) 4 SCC 725], at para 18, it was held: “that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” Consequently, the Apex Court set aside the conviction and the appellants were set at liberty. It was a case in which the trap Crl.A. Nos. 1614 & 1615 of 2003 20 witnesses were found not independent and reliable. 10. In Harshan v. State, the recovery of the bribe amount was from the drawer of the table of the appellant. The Phenolphthalein Test on the hands of the appellant was negative. Though this Court believed the evidence of the prosecution and arrived at a finding that the defence version that the money was put in the table without the acknowledgment of the appellant cannot be said to be improbable. Consequently, the conviction and sentence under challenge were set aside and the appellant was acquitted. 11. In G.K.Ghosh's case (AIR 1984 SC 1453), a three Bench of the Apex Court at para 10 observed as follows:- “10. By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to Crl.A. Nos. 1614 & 1615 of 2003 21 sacrifice his time and and effort whilst doing so. Thereafter, he has to attend the Court at the time of the trial from day-to-day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government Servant not to speak of facing the wrath of the Government servants of the department concerned, in this future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only