IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 CRL.A.No. 940 of 2003() ----------------------- APPELLANT/ACCUSED: -------------------------------- T.C. JOSE VARGHESE, S/O. T.A. VARGHESE, THAZHATHE HOUSE, ENANELLUR VILLAGE, MUVATTUPUZHA, ERNAKULAM BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM RESPONDENT/COMPLAINANT: ------------------------------------------ C.B.I. REPRESENTED BY ITS PUBLIC PROSECUTOR. BY ADV. SRI.S.SREEKUMAR, SC FOR CBI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.6.2011, THE COURT ON 07/09/2011, DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = Crl.A.No.940 OF 2003 = = = = = = = = = = = DATED THIS THE 7TH DAY OF SEPTMEBER, 2011 J U D G M E N T ---------------------- Appellant is the accused in CC 2/2001 on the file of the Special Judge, (SPE/CBI)-II, Ernakulam. He was prosecuted by the respondent alleging offences under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act (herein after referred to as 'PC Act'). The learned Special Judge after trial arrived at a finding of guilt. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for six months with a fine of Rs.3,000/- under Section 7; and rigorous imprisonment for one year with a fine of Rs.5,000/- under Section 13(2) read with 13(1)(d). Assailing the above conviction and sentence, this appeal was preferred. 2. The appellant was working as Senior Telecom Office Assistant in the office of the Sub Divisional Engineer (SDE), Bharat Sanchar Nigam Ltd. (BSNL), Murikkassery in Idukki district from 28.5.1998 to 5.5.2001. While so, PW1, Jose K. Mani, in the 2nd week of March 2001, approached the appellant and obtained an application form for shifting his sister's telephone bearing No.873667 of Murikkassery Exchange. PW1, thereafter, went to the office along with the application and gave it to the appellant. The appellant CRL.A. 940/2003 -2- returned the application stating that the copy of the receipt for the payment of the last telephone bill should be attached. PW1 returned. On enquiry with his sister, who was examined as PW.2, it was understood that the receipt was missing. On 20.3.2001, PW1 again approached the appellant and informed that the bill and the receipt were missing. The appellant told that he would make arrangements for getting the copy of the telephone bill and also for shifting the telephone for which the appellant demanded a sum of Rs.1,500/- as bribe. When PW1 stated that with that amount he could obtain a new connection, the appellant reduced the demand to Rs.1000/-. When PW1 stated that he was not having so much money, the appellant again reduced the demand to Rs.750/- and asked to meet the appellant on 22.3.2001 or on 23.3.2001 with the application. PW1 was not willing to give any bribe to the appellant. Therefore, he contacted the CBI Office, Cochin and preferred Ext.P1 complaint before PW5, the Inspector. PW5, after taking instruction from the superior officers, decided to trap the appellant. Ext.P1 was sent to the Office after taking a copy for registering the case. PW5, thereupon, arranged two independent witnesses. PW4 and CW.4 are the witnesses. PW5 demonstrated the Phenolphthalein test to the witnesses. Rs.750/- brought by PW1 as bribe amount was smeared with Phenolphthalein powder and entrusted back to PW1with instruction to pay the same to the appellant only on demand. Ext.P2 is the entrustment mahazar. PW1 was sent along with PW4. PW4 was instructed to accompany PW1 and to CRL.A. 940/2003 -3- watch the transaction. PW5 along with other personnel and CW.2 proceeded separately and took positions in and around the office of the appellant. PW1 was instructed to give signal on acceptance of the bribe by the appellant. PW1 went to the office of the appellant. The appellant repeated the demand. Accordingly the bribe money was handed over to the appellant and signal was conveyed to PW5. PW5 rushed to the office. Though the appellant denied of having accepted the bribe from PW1, he was found upset. The hands of the appellant were subjected to Phenolphthalein test. The test on the right hand turned positive. PW5 asked CW.4 to inspect the drawer of the table of the appellant. The trap money was found inside the drawer. The currency notes were taken out by CW.4 and verified with reference to Ext.P2 and ascertained its identity. The appellant was arrested and Ext.P3 recovery mahazar was prepared. The investigation was taken over by PW9, who after completing the investigation, submitted the charge sheet before the Special Judge. 3. The Special Judge took cognizance and issued process, responding to which the appellant entered appearance. Copy of the final report and connected documents were furnished. Either side was heard. On finding that there are materials to send the appellant for trial, a charge for the above said offences was framed. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P21 were marked. MOs 1 to 9 were CRL.A. 940/2003 -4- also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. Appellant denied the incriminating evidence and stated that while he was busily engaged in the office, PW1 approached him and handed over the application for shifting the telephone in the name of his sister. The application was not accompanied by the last telephone bill. PW1 was informed that unless the last telephone bill was made available, it would be difficult to verify whether there was any due. PW1 stated that the telephone connection was that of his sister's husband and that the application for shifting was made without consent and for that reason PW1 could not get the last telephone bill. The appellant stated that he would discuss the matter with the Sub Divisional Engineer. On query, PW1 stated that the application was signed by the subscriber. To verify whether the application was actually signed by the applicant, the appellant went to the table of PW7 requesting to take out the personal file. PW7 informed that he was busy with the preparation of a statement and that the file would be made available as soon as the preparation of the statement was over. Hearing that, the appellant returned to his seat. By the time, PW1 left the office. Immediately, the CBI officers rushed to the room and disclosed their identity. The appellant denied of having accepted any bribe from PW1. It was further stated that his colleagues, Joseph and Ravindran had some dispute with the security officer Sebastian John and there was complaint before the police CRL.A. 940/2003 -5- following which the service of the security man was terminated. Sebastian John was on impression that the appellant was the person behind the termination of his service. PW1 was a close friend of Sebastian John and that the case was foisted at the instance of Sebastian John and that the appellant did not demand or accept any bribe. Responding to the call to enter his defence, three witnesses were examined as DWs 1 to 3. The learned Special Judge on appraisal of the evidence on record, as mentioned earlier, found the appellant guilty consequent to which the conviction and sentence under challenge were passed. 4. In support of the prosecution case, there is the oral testimony of PWs 1, 4 and 5. PW.1, the defacto complainant had given evidence that for shifting his sister's (PW.2) telephone bearing No. 863667 he obtained the application form, took three copy of the same, filled up and approached the appellant in the second week of March, 2001. The appellant received the form, perused the same and returned, asking PW.1 to submit the application along with a copy of the last bill and receipt for remittance of the bill amount. The appellant also stated that there would be some expenditure for shifting. Though PW.1 realised that the expenditure mentioned by the appellant is illegal gratification, without mentioning anything, he returned. On enqiry with PW.2, it was revealed that the last bill and receipt for remittance were missing. In the afternoon of 20th March, he met the appellant and informed the matter. The CRL.A. 940/2003 -6- appellant agreed to arrange the same and to shift the telephone and stated that some money had to be given at Painnavu and Thodupuzha, and for that Rs. 1,500/- was required. PW.1 retorted that, with that amount he could get three new connections. Then the appellant reduced the demand to Rs. 1,000/-. PW.1 stated that he had not much money with him. Then the appellant reduced the demand to Rs. 750/- and asked to meet him on 22nd or 23rd March, 2001. Since PW.1 was not agreeable to get the telephone transferred by paying bribe, he telephoned to the CBI office, Kochi on the next day and complained about the demand for illegal gratification. When further particulars were enquired, PW.1 stated that it was not possible to give such details over phone. The officer obtained the telephone number of PW.1 and stated that he would call back after five minutes. Two minutes later, PW.1 was called and requested to meet PW.5 who was camping at Kavitha Tourist Home in Kattappana. Accordingly, PW.1 rang PW.5 and met PW.5 at 8'o clock on the next day. PW.1 gave Ext.P1 complaint. After taking copy of the same PW.5 sent Ext.P1 to Kochi office for registering the case. By about 9.30 a.m. responding to the request of PW.5, PW.4, and CW.4 arrived there. PW.5 appraised them about the complaint of PW.1. PW.5 got the bribe money from PW.1, smeared with Phenolphthalein powder and handed over to PW.4 to count. After counting, PW.4 was asked to dip his hands in sodium carbonate solution whereupon the fingers and the solution turned pink. The solution was taken in a bottle and CRL.A. 940/2003 -7- sealed. M.O.1 was identified as the bottle containing the solution. Thereafter, the tainted currency notes which were marked as M.O.3 series were put inside the pocket of the shirt of PW.1 with instruction to hand over the same to the appellant only on demand. Ext. P2 mahazar narrating the demonstration of Phenolphthalein test as well as the particulars of M.O.3 series was prepared. PW.4 was instructed to go along with PW.1. They proceeded to the office of the appellant. Reaching near the office of the appellant, PW.5 asked PWs 1 and 4 to get down and go to the office of the appellant by walking. PW.5 and party took position in and around the office. PW.1 went to the office and handed over Ext.P4 application form. After scribbling something on Ext.P4, the appellant asked whether the money he demanded was brought. Thereupon, PW.1 took out M.O.3 series and handed over to the appellant which was accepted with right hand and then put inside the right drawer of the table stating that he would do the needful. PW.1 came out and conveyed signal by combing hair as instructed earlier. PW.5 along with CW.4 and party rushed inside the office. PW.5 disclosed his identity, introduced PW.4 and CW.4 and asked whether the appellant had accepted bribe from PW.1. The appellant denied. The appellant was asked to dip his hands in sodium carbonate solution which was prepared at the spot. When the right hand was dipped, the solution as well as the fingers turned pink. M.O. 2 is the solution. There was no response when the left hand was dipped. The appellant again denied when CRL.A. 940/2003 -8- PW.5 repeated the question as to whether the appellant had accepted bribe from PW.1. As instructed by PW.5, the drawer of the table was opened by CW.4. M.O.3 series were found kept over a file, which was marked as Ext.P5, inside the drawer. The same was taken out and verified with reference to Ext.P2 and ascertained the identity. The surface of Ext.P5 was sweeped with cotton swab and when the cotton swab was dipped in another glass of sodium carbonate solution, it turned pink. M.O.4 is the cotton. Appellant was arrested and Ext.P3 mahazar was prepared for the seizure of M.O.3 series. Ext.P4 was seized along with Ext.P5. Ext.P6 is the file relating to the application of PW.2. A plan of the room was prepared. Ext.P7 was identified as the plan so prepared. 5. PW.4 had deposed that he was working as an officer in the New India Assurance Company Ltd. and that responding to the request by PW.5, on 22.3.2001 he had been to Kavitha Tourist Home where PW.5 was camping. CW.4 was also summoned by PW.5. PW.4 and CW.4 were appraised about the complaint of PW.1. PW.5 got M.O.3 series from PW.1 and smeared with Phenolphthalein powder. Thereafter, it was handed over to PW.4 and asked to count. After counting PW.4 was asked to dip his hands in the solution. The fingers and solution turned pink. M.O.1 is the solution. Thereafter, body search of PWs 1 and 4 was conducted. PW1 had a sum of Rs. 95/-, a purse, a pen and a comb. The money was entrusted to another person. M.O.3 series CRL.A. 940/2003 -9- were put inside the pocket of PW.1 with instruction to give it to the appellant only on demand. Ext.P2 mahazar was prepared. They proceeded to the office of the appellant. PW.4 was instructed to go along with PW.1 to overhear and witness the transaction between PW.1 and the appellant. Just before reaching the office of the appellant, PWs.1 and 4 were asked to get down from the jeep and asked to go further by walking. PW.5 and other party along with CW.4 took different positions. PWs 1 and 4 went inside the office. PW.4 met an officer and enquired about taking a new telephone connection. PW4 was asked to meet the appellant, who was sitting on the other side, after the person whom he had been then attending, leaving the office. He waited inside the room for sime time and then moved to the varandah. A little later, PW.1 came out and conveyed signal. PW.5 along with the other witnesses and party immediately rushed to the office of the appellant. PW.5, after showing identity card, introduced him to the appellant. Then, PW.4 and CW.4 were also introduced. PW.5 asked whether the appellant had accepted bribe from PW.1. The appellant denied. The application submitted by PW.1 was on the table. Sodium carbonate solution was prepared and the appellant was asked to dip his hands in it. On dipping the left hand there was no change. But when the right hand was dipped, the hand and the solution turned pink. PW.5 again asked whether the appellant had accepted bribe from PW.1. The appellant denied. As asked by PW.5, CW.4 opened the drawer of the table and found that M.O.3 CRL.A. 940/2003 -10- series were inside the drawer. It was seized and verified with reference to Ext.P2 and ascertained its identity. M.O.3 series were kept over another file. With a piece of cotton, the surface of the file was sweeped and the cotton was dipped in sodium carbonate solution. The cotton swab and sodium carbonate solution turned pink. M.O.4 is the cotton swab and M.O.8 is the bottle containing the solution. Ext.P3 was prepared and the appellant was arrested. Ext.P4 application filed by PW.1 was seized. Ext. P5 was identified as the file over which M.O.3 series were kept inside the drawer. Ext.P7 is the plan prepared by PW.5. 6. PW.5 had given evidence regarding the receipt of Ext.P1 from PW.1, sending the same for registering the crime, the arrangement for trap, preparation of Ext.P2 and P3 mahazars, seizure of M.O.3 series etc. His evidence would corroborate with the evidence of PW1 and 4 in material particulars. 7. PW.2 is the sister of PW.1. She had deposed that she had requested Pw.1 to take steps for getting the telephone connection shifted to a new house built up by her. 8. PW.3 is a daily wager employed in the office of the appellant. She was also examined by the prosecution to depose that she had witnessed the appellant accepting bribe from PW.1. But PW.3 denied of having seen the appellant accepting the bribe. At the same time she would depose that the phenolphthalein test on one hand of the appellant was positive. CRL.A. 940/2003 -11- 9. PW.6 is the Sub Divisional Engineer. He would depose that the appellant was working as Senior Telecom Office Assistant and that Ext.P12(a) is a letter sent by him to the Area General Manager, reporting the joining duty of the appellant and that on 5.5.2001, the appellant was transferred to Thodupuzha and Ext.P12(b) is the transfer order and that while he was engaged in the work of establishing the Exchange at Mullarikkudy, a CBI Officer telephoned at about 2 p.m. on 22.3.2001 and informed about the arrest of the appellant. PW.6 rushed to the office and the appellant was got released on bail. Ext.P3 attendance register was produced. In Ext.P3, the appellant did not mark his attendance on 22.3.2001. But PW.6 had recorded the presence of the appellant on that day. Ext.P6 was proved as the file relating to the telephone connection given to PW.2. Ext.P4 application filed by PW.2 was identified and the endorsement over the same by the appellant was also proved. PW.6 had further deposed that it was the appellant who was dealing with the matters relating to the shifting of telephones. PW.6 had produced certain other documents at the request of the investigating officer. 10. PW.7 is yet another daily wager in the office of the appellant. He was examined to prove that one of the three forms in Ext.P4 was filled by him as requested by PW.1. PW.7 would further depose that on the date of trap, PW.1 reached the office along with another man who enquired about the procedure for getting new connection. PW.1 was dealing with the appellant. CRL.A. 940/2003 -12- The other man was asked to wait. By the time, the appellant came to his seat and asked to take the file relating to the application of PW.1. Since PW.7 was busy in preparing a statement, he told the appellant that the file would be taken a little later. The appellant returned to his seat. By the time, the C.B.I Officers rushed to the office. Though this witness was also examined by the prosecution to prove the acceptance of M.O.3 series by the appellant and recovery, he denied of having seen the acceptance or recovery. 11. PW.8 is the area manager employed in BSNL. He would depose that the investigation report and connected records were sent to him and after verifying the same he had issued Ext.P18 order according sanction to prosecute the appellant and that he was the appointing authority of the appellant. PW.9 is the investigating officer. 12. The status of the appellant as public servant deposed by PWs.1, 3, 7 and 8 was not only not denied but admitted by the learned counsel for the appellant. Ext.P18 order issued by PW8 was also not assailed. In the above circumstance, concurring with the trial court I find that the appellant was a public servant, as defined under Section 2(c) of the P.C.Act, employed in the Telephone Exchange and he was prosecuted with due sanction. 13. According to the learned counsel for the appellant, the evidence of the prosecution is not at all convincing to arrive at a conclusion of guilt. It was also alleged that PW.1 was ill-motivated at the instance of Sebastian John and CRL.A. 940/2003 -13- M.O.3 series were implanted inside the drawer of the table when the appellant moved out of the seat and there was no demand or acceptance of any illegal gratification. Relying upon the decision reported in Suraj Mahal v. The State (Delhi Aministration) (AIR 1979 SC 1408), Gereesh Babu vs. CBI (2009 (2) SCC Crl.1), Banarsi Dass v. State of Haryana (AIR 2010 SC 1589) and M.K. Harshan v. State of Kerala ( AIR 1995 SC 2178), the learned counsel argued that the recovery of the tainted currency notes from the drawer of the table would not amount to proof regarding demand and acceptance and no conviction is sustainable basing upon the recovery of M.O.3 series. On the other hand, according to the learned standing counsel for the respondent, there is cogent evidence of PW.1 regarding demand and acceptance and that regarding the recovery of the tainted currency notes there is the evidence of PW.4 and PW.5 corroborated by Ext.P3 mahazar. It was also argued that once it is established that a public servant had accepted illegal gratification, there would arise a compulsory statutory presumption under Section 20 of the PC Act that the gratification was accepted as a reward or motive for discharging of the duties as a public servant. He had also argued that corroboration of the defacto complainant in a case of demand for illegal gratification is not at all required and that the recovery of the trap amount from the accused itself would amount to corroboration. Corroboration is not a rule of law, but a rule of prudence and in cases like this there is little chance for corroboration by any other witness. CRL.A. 940/2003 -14- The crucial issue, according to the learned counsel, is the credibility of the defacto complainant, which in this case is beyond any doubt. In support of his argument, the learned standing counsel had relied upon the decisions in M. Narasinga Rao v. State of A.P. (2001 SCC Crl. 258), T. Sankar Prasad v. State of A.P.(2004 SCC Crl. 870), Hazari Lal v. The State (Delhi Admn.) (1980 Crl. LJ 564), State of U.P. v. Zakaullah (1998 Crl. LJ 863) and P. Krishna Pillai v. State of Kerala (Crimes -IV-1989 (1) 700). 14. I have carefully gone through the precedents cited from either side as well as the evidence on record. PW.1 had given evidence regarding the demand made by the appellant, that on 20.3.2001 when PW.1 approached with application for shifting the telephone, the appellant demanded a sum of Rs. 1,500/- as bribe. When PW1 stated that he could have a new connection with that amount, the appellant reduced the demand to Rs. 1,000/-. Then PW.1 stated that he had no such money. Thereupon, the appellant reduced the demand to Rs. 750/-. PW.1 had also deposed that in the second week of March, 2001, he met the appellant enquiring about the procedure for shifting the telephone. After mentioning the procedure for shifting, the appellant stated that there would be some expenditure for it. On 22.3.2001, when PW1 approached the appellant again with Ext.P4, appellant repeated his demand following which MO3 series were given and it was accepted by the appellant. On carefully going through the evidence of PW.1, except some minor CRL.A. 940/2003 -15- discrepancies here and there, his evidence regarding demand and acceptance is creditworthy. As stated earlier, the defence is that PW.1 thrust M.O.2 series in the drawer of the table when the appellant went to PW.7 to ascertain whether the signature in Ext.P4 application tallies with the signature in the application submitted by the subscriber for getting connection. If that be so, there is little chance for having Phenolphthalein powder on the right hand of the appellant. Consistant evidence of PWs 1,4 and 5 is that when the right hand of the appellant was dipped in the sodium carbonate solution, the hand as well as the solution turned pink. The evidence of PWs 1,4 and 5 on that aspect remains inimpeached. Though PW.3 had not supported the prosecution regarding acceptance of MO3 series, she had given evidence that Phenolphthalein test on one hand of the appellant turned positive. The response of the right hand of the appellant to sodium carbonate solution is a very strong circumstance in support of the argument that the appellant had accepted M.O.3 series with his right hand. On the other