IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 CRL.A.No. 305 of 2004(A) ----------------------------------------- CC.35/2000 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT/1st ACCUSED: M.P.PRABHAKARAN, S/O. V.C.KARUNAKARAN NAIR, MADATHIPOTTAYIL VEEDU, KERALASSERY, PALAKKAD. *K.N.USHA DEVI, W/O LATE M.P.PRABHAKARAN, 'SREE PRABHA', KERALASSERY, PALAKKAD DISTRICT. *is granted leave to continue the appeal after the death of the appellant vide order dated 28.1.2011 in Crl.M.Appl. 2461/2006. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011 ALONG WITH CRA NO. 333 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------------------------ Crl.A.Nos.305 & 333 of 2004 ------------------------------------------- COMMON JUDGMENT First accused was the Sub Engineer, Kerala State Electricity Board Electrical Major Section, Ottapalam. Second accused was a petty contractor of Electrical Major Section, Ottapalam. They were convicted and sentenced for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act by Special Judge (Vigilance), Kozhikode in C.C.No.35/2000. First accused challenged the conviction and sentence in Crl.A.No. 305/2004 and second accused in Crl.A.No.333/2004. 2. Prosecution case is that PW1 Xavier Biju was the Supervisor of JRJ Shopping Complex, Ottapalam, owned by Govindankutty. On the morning of 15.7.1999, first accused came to the shopping complex, while PW1 and Hari, who was attending the civil works of the shopping complex, were present. First accused informed them that the amount deposited for OYEC (On Your Electric Connection) Scheme CRA 305 & 333/04 2 was less then the required amount and the inspection shows that meter panel board is not sealed. It is alleged that first accused informed PW1 that if he is properly satisfied, the excess amount need not be paid. PW1 informed Govindankutty, the owner, who reluctantly handed over Rs.1,500/- to PW1. PW1 paid Rs.1,500/- on 21.7.1999, when first accused came there along with the second accused and demanded it. It is alleged that the amount was paid to the second accused, in the presence of the first accused, as instructed by the first accused. Thereafter, PW1 informed first accused that six more connections are to be given and sought assistance of the first accused to get the connections expeditiously. It is alleged that first accused promised to do the needful, provided he is paid the necessary amount. It is alleged that first accused came to the shopping complex on several days demanding Rs.10,000/-. PW1 informed it to the owner Govindankutty. He was not prepared to pay the same or even to meet the first accused. It is alleged that on 29.7.1999, first accused came to the shopping complex and CRA 305 & 333/04 3 asked PW1 to pay the amount at this office on the next day. PW1 informed it to the owner Govindankutty. Govindankutty disclosed that no bribe could be paid and handed over Rs.2,000/- to PW1 to be paid as bribe to the first accused and directed PW1 to inform the vigilance department. PW1, accordingly, contacted PW12, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad, over phone. As advised, PW1 went to the office of PW12 on the next day morning at about 8.15 a.m. PW12 assured the presence of PWs 2 and 3, Tahsildars, for laying the trap. PW12 prepared Exhibit P1 F.I. Statement of PW1 and under Exhibit P1(a) FIR, registered V.C.No. 9/1999 for the offence under Section 7 of Prevention of Corruption Act. PWs 1 to 3 reached the office of PW12 and PW12 introduced PWs 1 to 3 among themselves and along with PW9, the Police Constable, explained the procedure for arranging the trap and demonstrated the effect of phenolphthalein powder. MO1 series of currency notes for Rs.2,000/- produced by PW1 were immersed with CRA 305 & 333/04 4 phenolphthalein powder and were entrusted to PW1 with the specific instruction to give it to the first accused only if demanded. Exhibit P2 pre-trap mahazar was prepared. PWs 2, 3 and 9 were instructed to follow PW1. Along with PW2, PW1 went to the office of the first accused. PW12 waited outside along with PW3. PW9 and other Police Constables were issued to convey the signals as and when PW1 gives the pre-arranged signal on payment of bribe and its acceptance. PW1 approached the first accused and the first accused demanded money. When PW1 disclosed that he has brought the money, PW1 was asked to pay the amount to the second accused. Second accused, on receiving MO1 series, put it in the pocket of his underwear. PW1, thereafter, gave the signal. PW9 conveyed the signal. PW12 then rushed to the spot. When PW1 disclosed that he paid the money to the second accused as instructed by the first accused, second accused was questioned whether he received the amount. Second accused admitted that he received the amount and kept it in his underwear. Hands of CRA 305 & 333/04 5 the second accused were immersed in lime water. It turned pink. PW3 took MO1 series from the pocket of the underwear worn by the second accused. On verification, it was found that they are the same currency notes which were entrusted back to PW1 with instruction to give it to the first accused, if demanded. Phenolphthalein test was found positive on the second accused. Though hands of the first accused was immersed in lime water, result was negative. Accused were arrested. Exhibit P6 post trap mahazar was prepared. PW11, the Inspector, conducted investigation. He prepared the factual report after getting Exhibit P26 sanction order issued by PW10, the Chief Engineer, to prosecute the first accused. PW12 laid the charge. Learned Special Judge took cognizance of the offences under Sections 7 and 13(2) read with Section 13(1) (d) of Prevention of Corruption Act. When charge was framed and read over to both the accused, they pleaded not guilty. CRA 305 & 333/04 6 3. Prosecution examined thirteen witnesses and marked twenty six exhibits and identified nine material objects. After closing the prosecution evidence, accused were questioned under Section 313 of Code of Criminal Procedure. When called upon to adduce evidence, first accused examined DW1 and got marked Exhibits X1 to X8. Learned Special Judge, on the evidence, found both the accused guilty. They were convicted and sentenced accordingly. The conviction and sentence is challenged in these appeals contending that learned Special Judge did not properly appreciate the evidence and on the evidence, the conviction is unsustainable. 4. Learned counsel appearing for the appellants and learned Public Prosecutor were heard. 5. Learned counsel appearing for the appellants pointed out that the very case deposed by PW1 is contradictory to his version in Exhibit P1 F.I. Statement and it is further contradicted by the evidence of PWs 2, 3, 9 and 12 and on the evidence, it is impossible to believe that first CRA 305 & 333/04 7 accused demanded any bribe or received any bribe through the second accused. It was pointed out that evidence establish that second accused was a petty contractor and was also remitting electricity charges for various consumers. He was also remitting electricity charges of various consumers of JRJ Shopping Complex also. On that crucial day, PW1 entrusted MO1 series of currency notes, enclosed in an envelope, to the second accused stating that he will give the bills within a short time and immediately the vigilance police caught him and then only second accused realised that he was cheated. Learned counsel argued that evidence of PW3 corroborates the defence case that currency notes seized from the pocket of the second accused were in an envelope, as, PW3, in chief examination itself, deposed that the currency notes were found in an envelope, though other witnesses did not disclose the same and Exhibit P6 mahazar is silent on this aspect. Learned counsel appearing for the appellants also pointed out that if the evidence of PW1 is to be believed, entire transaction CRA 305 & 333/04 8 took place inside the office of the first accused and if evidence of PW2 is to be believed, it was at the outside, near to the portico and if evidence of PWs 9 and 12 are to be believed, it was far outside the office, near to the gate and learned Special Judge did not consider these material discrepancies at all and in such circumstances, the conviction is unsustainable. 6. Learned Public Prosecutor argued that there are several circumstances corroborating the prosecution case and evidence of PW1 shows that first accused had approached PW1 on several days demanding bribe and reluctantly Rs.1,500/- was earlier paid and again appellant demanded Rs.10,000/- and when PW1 informed the demand to the owner, he was not prepared to pay the bribe and they informed the vigilance and trap was laid. It was also argued that there is no material discrepancy in the evidence of PWs 1, 2, 9 and 12 and in such circumstances, the conviction is sustainable. CRA 305 & 333/04 9 7. A reading of the judgment of the learned Special Judge reveals that there was no attempt to appreciate the evidence in the proper perspective. Learned Special Judge, after narrating the evidence of the witnesses paragraph wise, held that evidence of PW1 is credible and there is no reason to disbelieve his evidence stating that his evidence is corroborated by the evidence of PWs 2, 3 and 9, ignoring the material discrepancy. In fact, learned Special Judge did not consider any of the discrepancies in their evidence at all. Thereafter, disbelieving Exhibit X1(a), for the reason that it is a report allegedly prepared by the first accused in 1999 and it is the only paper seen in Exhibit X1 file which relates to 1997, held that it was planted there subsequently and therefore, it cannot be believed. For that reason, prosecution case has been accepted. That is not the way in which the evidence is to be appreciated, especially, in a trap case. 8. At the outset, it is to be borne in mind that when PW1 furnished Exhibit P1 F.I. Statement, the specific case CRA 305 & 333/04 10 was different from the one deposed by him from the witness box. Case projected in Exhibit P1 was that PW1 is the Supervisor of JRJ Shopping Complex and one Hari is looking after the civil works of that shopping complex and there were twenty four electrical connections in the shopping complex and for the shopping complex, six more connections were needed. The allegation is that on the morning of 15.7.1999, first accused came to the shopping complex, introduced himself as the Sub Engineer of KSEB, Ottapalam and informed PW1 and Hari that the amount deposited for OYEC Scheme is less than the required amount and therefore, the balance is to be remitted. They were also informed that the panel board is not sealed and it should be sealed. The allegation is that first accused demanded money for avoiding payment of excess amount. Exhibit P1 shows that PW1 informed this demand to Govindankutty, the owner of the shopping complex and Govindankutty was not even prepared to meet the first accused. Still, appellant came to the shopping complex CRA 305 & 333/04 11 thrice before 27.9.1999 demanding money. On 27.9.1999, first accused again came there demanding the amount. When PW1 informed it to Govindankutty, he refused to meet him and instructed PW1 to talk to the first accused. Govindankutty also entrusted Rs.1,500/- to PW1 as it was felt that excess amount may have to be remitted because the amount deposited for OYEC Scheme was short. On 27.9.1999 at about 10 a.m., first accused came to the shopping complex and met PW1. He demanded the amount. PW1 disclosed to the first accused that Govindankutty entrusted Rs.1,500/-. First accused introduced second accused to PW1 and directed him to pay Rs.1,500/- to the second accused. Reluctantly, as there is no other course, PW1 paid that amount to the second accused. First accused thereafter left the place and returned back after some time. PW1 then disclosed that applications will be given for six new connections and the connections are to be expedited. First accused then disclosed to PW1 that the amount paid earlier was insufficient and more money is to be paid. PW1 CRA 305 & 333/04 12 asked first accused to specify the amount. First accused then demanded Rs.10,000/- stating that it shall be paid within one week. PW1 told first accused that owner is not there and is on tour and when the owner reaches, he will pay the money. First accused disclosed that unless money is paid, it will be difficult to give the six connections. On 27.7.1999, first accused came to the shopping complex and demanded the money. PW1 disclosed that owner has not yet reached and as and when the owner comes, amount will be paid. PW1 contacted Govindankutty, the owner. Govindankutty told him that it is not proper to pay any bribe. On the evening of 29.7.1999, first accused came to the shopping complex and asked why the amount is not being entrusted. Along with the first accused, second accused was also present. At that time, Hari, the person who was attending the civil works, was also present. PW1 disclosed to the first accused that there was some difficulty to arrange the amount because of paucity of funds and so, only Rs.2,000/- could be paid. First accused then asked PW1 CRA 305 & 333/04 13 to meet him at his office at 10 a.m. along with the available money. PW1 went to the owner and disclosed the matter. Owner gave Rs.2,000/- to PW1 and instructed him to approach the vigilance and lodge a complaint. PW1, accordingly, furnished Exhibit P1 F.I. Statement. Therefore, as per the case in Exhibit P1, first accused originally demanded bribe without disclosing the amount stating that excess amount is to be paid towards the deposit under OYEC Scheme, as the amount deposited is insufficient. Though first accused directed that panel board is to be sealed, there is no case that for not sealing the panel board any amount was demanded. PW1 informed this demand to the owner Govindankutty. Govindankutty handed over Rs.1,500/- to PW1 so that PW1 could remit the deficit amount. PW1 did not verify what was the deficit amount and instead paid Rs.1,500/- as if it is bribe. Thereafter, PW1 requested for the help of first accused to get six more new connections without delay. First accused then demanded money for doing that favour. At that time, no specific CRA 305 & 333/04 14 amount was demanded. PW1 wanted first accused to specify the amount. Then first accused demanded Rs.10,000/-. PW1 informed the demand to Govindankutty. Govindankutty was not prepared to pay the amount. First accused came to the shopping complex several times and demanded the money. Ultimately, PW1, disclosing that there was paucity of funds, promised to pay only Rs.2,000/-. First accused agreed for receiving that amount. That amount was fixed by PW1 without consulting the owner Govindankutty. After the first accused agreed to pay that amount, PW1 informed it to Govindankutty. Govindankutty then disclosed that no bribe could be paid and entrusted Rs.2,000/- to PW1 with a direction to inform the vigilance. The evidence of PW1 is different. About fifteen days prior to the date of Exhibit P1, first accused came to the shopping complex to ascertain whether the money for OYEC Scheme was deposited. When PW1 disclosed the deposit, first accused told him that more amount is to be deposited. He was also told that the panel board is to be sealed. First accused wanted to meet the CRA 305 & 333/04 15 owner. PW1 informed to the owner, who, in turn, entrusted Rs.1,500/-. PW1 paid it to the second accused as instructed by the first accused. PW1 told first accused that five or six new connections are to be expedited. First accused then demanded a bribe of Ten thousand rupees. PW1 promised to convey it to the owner. Owner, when informed, refused to pay bribe and handed over Rs.2,000/- and asked PW1 to inform the vigilance. In the presence of the owner, PW12 was contacted over phone. Then Exhibit P1 was lodged. The question is whether, on the evidence, the prosecution case could be believed. 9. Evidence of PW4, Assistant Engineer, which is not challenged, conclusively establishes that the amount to be deposited for OYEC Scheme is a fixed amount, which cannot be varied by anybody, much less, by a Sub Engineer like the first accused. Evidence of PW4 also establishes that first accused has nothing to do with fixation of the amount for the OYEC Scheme. The specific case is that the alleged demand was not for not sealing the panel board but only for CRA 305 & 333/04 16 avoiding remittance of the deficit amount, to be deposited for OYEC Scheme. When it is proved that there is no possibility of reducing that amount, the very case of demand for bribe and that too, from the owner of a shopping complex with existing connections of not less than fifteen for avoiding or reducing remittance of the deficit amount cannot be believed. 10. Evidence of PW1 from the box defers from the case disclosed in Exhibit P1. As per the evidence of PW1, after the payment of Rs.1,500/- to the second accused, as instructed by the first accused, PW1 requested for assistance of the first accused to get six more new connections without delay and then first accused promised that he will do what is necessary, provided, he is properly paid. No amount was disclosed at that time. After two or three days, first accused came to the shopping complex and demanded Rs.10,000/-. PW1 disclosed that he will consult it with the owner and inform the first accused. PW1 disclosed the information to Govindankutty. Govindankutty refused to CRA 305 & 333/04 17 pay the amount and said that it cannot be paid. First accused again came to the shopping complex four or five days prior to the date of furnishing Exhibit P1 F.I. Statement. When PW1 informed Govindankutty earlier regarding the demand, Govindankutty asked him whether first accused had given receipt for Rs.1,500/- and when PW1 disclosed that it was not given, Govindankutty stated that the demand is for bribe and the matter is to be informed to the vigilance and instructed PW1 to inform the Vigilance Department. It is thereafter Rs.2,000/- was entrusted by Govindankutty to PW1 and PW1 furnished Exhibit P1 F.I. Statement. If evidence of PW1 is to be believed, he fixed Rs.2,000/- with the first accused, before consulting the owner and first accused agreed to receive the same. It is impossible to believe the said case especially when evidence of PW1 shows that even earlier, Govindankutty told PW1 that he will not pay any bribe. PW1 has no case in Exhibit P1 that he got the amount reduced to Rs.2,000/- by the first accused after he was told by the owner to inform the CRA 305 & 333/04 18 vigilance. As per his evidence from the box, even before consulting the owner, he successfully got first accused reduce the demand of Rs.10,000/- and to accept Rs.2,000/-. If so, how first accused would receive Rs.2,000/-, as the demand was for Rs.10,000/-, is not explained at all. It is clear that evidence of PW1 from the box is entirely different from the case originally projected in Exhibit P1. In the light of this discrepancy, evidence with regard to the trap arranged by PW12 on 30.7.1999 is to be appreciated with sufficient care and caution. 11. Exhibit P6 is the post trap mahazar prepared after the bribe was allegedly paid and the bribe money was recovered. PW3 is one of the attesting witness to Exhibit P6. As per the evidence of PW3, he signed in Exhibit P3, not from the office of the first accused, from where the mahazar was shown prepared, but from the vigilance office. Evidence of PW1 is to the effect that he went to the office of the first accused on that crucial day, when second accused was also present in the office. PW1 asked him whether he brought CRA 305 & 333/04 19 the money. When PW1 answered affirmatively, he was asked to pay the amount to the second accused. PW1 paid it to the second accused. Second accused received it and put it in the pocket of his underwear. PW1 thereafter gave the pre-arranged signal. PW12 and others rushed to the spot and the bribe money was recovered. If it is true, bribe was demanded and paid inside the office of the first accused, where second accused was also present, PW1 has no case that he had gone out of the office after payment of bribe money before it was recovered by PW12. PW2 was declared hostile. When he was cross-examined by the Prosecutor, he deposed that along with PW1 he reached outside the office of the first accused and PW1 showed him the first accused sitting inside his office, where second accused was also present. PW1 went into the office. Later, he found the second accused talking with PW1 near the car porch, which is in front of the office building. From there, PW1 gave the pre-arranged signal. PW2 conveyed the signal. Then he saw PW1 walking towards the gate along with second accused. CRA 305 & 333/04 20 He also found first accused walking towards the gate. Then PW12, Deputy Superintendent of Police, came there and thereafter, the bribe money was recovered. Evidence of PW9, the Police Constable, is to the effect that he found both the accused standing near the gate from where PW12, the Investigating Officer, questioned them and the bribe money was recovered. Evidence of PW3, the Gazetted Officer, is that he was waiting along with PW12 outside the gate. He found the accused and PW1 near the gate. PW12 approached them and recovered the bribe money. Evidence of PW12 is also to the effect that on getting the pre- arranged signal, he went towards the office of the first accused. Then both the accused were found near the gate. 12. If the evidence of PW1 is to be believed, he had not gone near to the gate at all and the entire transaction was inside the office. Evidence of PWs 2, 3, 9 and 12 contradict this evidence of PW1. Unfortunately, learned Special Judge did not even consider this material discrepancy and disbelieved the defence solely based on the finding on CRA 305 & 333/04 21 Exhibit X1(a) that it is not possible to have a report of 1999 in a file relating to 1997. 13. On a proper appreciation of the evidence of PW1 with the contradictory versions of PWs 2, 3, 9 and 12, it is impossible to believe the prosecution case. As stated earlier, prosecution case is that when demand for Rs.10,000/- was made, apart from PW1, Hari, the person who was attending the civil works in the shopping complex, was also present. He was not examined. Apart from the unreliable evidence of PW1, there is no other evidence to prove the demand. There is absolutely no evidence to prove that applications for six new connections were submitted either by PW1 or by Govindankutty. The very case of demand for bribe of Rs.10,000/- was for expediting the six new connections. Prosecution did not adduce any evidence whether applications for six connections were even submitted. If so, there is no possibility of demanding bribe for giving connections which were not even applied for, much less, agreeing for paying it. If so, it cannot be believed CRA 305 & 333/04 22 that either Govindankutty would agree to pay Rs.2,000/- or PW1 would pay that amount. Even if the prosecution case is to be believed, when bribe is to be paid for the purpose of getting six more new connections,