IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 4TH DAY OF NOVEMBER 2010/13TH KARTHIKA 1933 CRA.No. 697 of 2001 (A) ----------------------- CC.1/2000 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM ........... APPELLANT/ACCUSED: K.N.RAMESH, S/O NANU, FORMERLY SENIOR CO-OPERATIVE INSPECTOR, OFFICE OF THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT, KOLLAM. BY ADVS.SRI.K.JAJU BABU SRI.BRIJESH MOHAN SMT.RESMI G.NAIR RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2010 ALONG WITH CRLMC NO.1648/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J. ------------------------------- Crl.Appeal.No.697 of 2001 & Crl.M.C.No.1648 of 2004 -------------------------------- Dated this the 4th day of November, 2010 JUDGMENT Is mere recovery of tainted money from possession of accused during trap sufficient to convict him for offence under Section 7 or Section 13(1)(d) of the Prevention of Corruption Act ('the Act', for short)? Is mere receipt of money by a person from another sufficient to prove “acceptance” of any “gratification”, for purpose of Section 7 of the Act? Mainly, these two questions arise for consideration in this case. 2. According to prosecution, PW1 was working as Secretary of a Co-operative Society. Certain allegations were made against him that he misappropriated `.30,000/- from the Society. Hence an enquiry was conducted against him by PW4, a Senior Co-operative Inspector, attached to the Office of the CRA 697/01 & CRMC 1648/04 2 Deputy Director of Dairy Development. The appellant and PW4 shared the same chamber in the office and both of them went for inspection of the Society in the same car. To settle the enquiry in favour of PW1, and as a motive or reward for doing so, appellant demanded `.3,000/- as bribe from PW1 on 31.12.1998 at his office. He again made demand for bribe over phone on 06.01.1999. But, PW1 was not prepared to pay bribe. He informed PW6, Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau ('VACB' for short) and a trap was arranged. 3. A complaint (Exhibit P1) was made by PW1 to PW6, Deputy Superintendent of Police, on 07.01.1999 at about 4 p.m., based on which, Exhibit P1(f) FIR was registered by PW6. On the next day, on 08.01.1999 at about 11 a.m., as arranged, PW1 handed over tainted currency notes (MO1 series) to appellant at his office and it was accepted by accused. Thereafter, signals were given by PW1, which were further conveyed by PW2 to PW6. Thereafter, officials rushed to the cabin of accused and Phenolphthalein test was done and it was confirmed that accused CRA 697/01 & CRMC 1648/04 3 accepted `.3,000/- (MO1 series) from PW1. 4. Investigation was conducted and on competition of the same, charge sheet was laid by PW6 against appellant before Court of Enquiry Commissioner and Special Judge ('Special Judge' for short) for offences Sections 7 and 13(2) read with Section 13 (1)(d) of the Act. The trial court framed charge against the appellant as follows: “That you the accused being a public servant while working as Senior Co-operative Inspector in the Office of the Deputy Director, Dairy Development, Pullikkada, Kollam on 31.12.1998 at your office demanded Rs.3,000/- from CW1 Yesodharan, the Former Secretary of the Ambalakkara Ksheerothpadaka Co-operative Society and repeated your demand over phone on 6.1.1999; and accepted Rs.3,000/- as gratification other than remuneration at 11.10 a.m. On 8.1.1999 at your office mentioned above, as a reward for settling the complaint sent by the Board of Directors of the Ksheerothpadaka Co-operative Society, Ambalakkara and thereby you the accused obtained pecuniary advantage and such you committed the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and within the cognizance of this Court.” 5. Prosecution examined PW1 to 7 and marked Exhibits CRA 697/01 & CRMC 1648/04 4 P1 to P17 on its side. MO1 to MO7 were also marked. The accused was questioned under Section 313 of Code of Criminal Procedure ('the Code' for short). He pleaded innocence and made a detailed statement. For appreciation of the contentions raised by both sides, it is necessary to refer to portions of his statement as follows: Appellant did not make any demand to PW1 nor did he accept any bribe. PW4 and appellant were working in the same office in the same capacity as Co-operative Inspectors and specific local jurisdiction was also fixed for each of them. PW1's Society falls within the jurisdiction of PW4 and appellant had no occasion to go to the said Society for any inspection. He also has no authority to inspect any records of the said Society. The records of the society were all inspected by PW4 himself and not by appellant. On 26.11.1998, PW4 alone went to the Society of PW1 for inspection, and on that day, appellant had inspection in Mylapur Society. This fact will be revealed from attendance Register and Tour diary relating to the appellant on 26.11.1998. PW1 deposed that it was PW4 who made the demand over phone and he also recorded the telephonic conversation in a cassette. According to PW1, this fact was disclosed to the police, when PW1 made a complaint to PW6 against PW4. This is known to police on 5.1.1999 itself. PW1 had made a complaint to DW1 against PW4 and DW1 had directed PW1 either to give a complaint in writing or to give the complaint to Vigilance. On 8.11.1999, PW1 had gone to the office of PW6, with the cassette before the trap was arranged. It is not correct to say that FIR was registered at 4 pm on 07.01.1999. It was only after 08.01.1999 that FIR was prepared. The appellant was produced before the CRA 697/01 & CRMC 1648/04 5 residence of the Judicial Officer on the next day at 6.15 p.m. The FIR was produced before learned Magistrate at his residence only on 08.01.1999 at 6.30 p.m. and not as stated in FIR. There are corrections in the General Diary which will indicate that FIR was not registered on the date and time as alleged by prosecution. The appellant has not signed in the Log book, but his name is recorded by somebody in the Logbook to create evidence against him. On 08.01.1999 at about 10 a.m., appellant had gone out of the office and came back at 11 am, while he was told that PW4 had informed over phone that he would be late to come to office and that his relative one Yasodharan would come to office with Rs..3,000/-. Appellant was asked to receive the same. Within few minutes, PW1 came to the cabin when appellant asked him whether PW4 had come to the office. Appellant then confirmed that PW1 was the person referred to by PW4 and thereafter, he received the money which was kept by PW1 on the table. Appellant kept it in the drawer of the table and assured PW1 that it would be entrusted to PW4. By the time, police came there. When appellant was attempted to be arrested, DW2 who is a staff of the office explained the true facts to police, but in spite of it, appellant was removed to the office of the VACB. Appellant was not aware that amount entrusted by PW1 was bribe money. Appellant sent a complaint to Chief Minister explaining his innocence. He complained that he was implicated falsely even though the investigating officer was in possession of the cassette which will reveal the true facts. An enquiry was ordered, and Superintendent of Police, Vigilance conducted an enquiry. FIR was registered by PW6 and he himself conducted the investigation and laid the charge. 6. On an analysis of evidence and other materials, learned Special Judge held that it is proved that currency notes (MO1 series) were recovered from appellant's possession and CRA 697/01 & CRMC 1648/04 6 appellant also admitted acceptance of tainted currency notes (MO1 series). Hence, prosecution is relieved of the duty to prove motive or reward for which, the gratification was accepted, by virtue of Section 20 of the Act, it is held. A presumption was also drawn by court below that appellant accepted MO1 series for “doing or forbearing to do an official act”. It was also held that accused obtained money by abusing his official position as a public servant. 7. The appellant was convicted for offence under Section 13(1)(d) of the Act and also under Section 7 of the Act. The appellant was sentenced to undergo rigorous imprisonment for four years and to pay a find of `.30,000/- for offence under Section 7 of the Act. In default of payment of fine, accused is sentenced to undergo rigorous imprisonment for one year. He is also sentenced to undergo rigorous imprisonment for three years for offence under Section 13(2) read with Section 13(1)(d) of the Act. This appeal is filed against the said conviction and sentence passed against appellant. 8. While discussing evidence, certain adverse remarks CRA 697/01 & CRMC 1648/04 7 were also made by the court below against DW1, Deputy Director. Hence, Crl.M.C.No.1648/2004 is filed to expunge such observations. Both these matters are heard and disposed of by this judgment. 9. Heard both sides in detail. Perused records and the impugned judgment. Sri.Jaju Babu, learned counsel for appellant vehemently argued that conviction of appellant for offence Sections 7 and 13(2) read with Section 13(1)(d) of the Act is totally illegal and unsustainable, since prosecution failed to prove “demand” of bribe. According to him, to convict a person for offence Sections 7 and 13(2) read with Section 13(1)(d) of the Act, prosecution must prove that accused demanded bribe. 10. It is also submitted by learned counsel for appellant that PW1 who is the sole witness examined to prove demand turned hostile to prosecution and he did not say that any demand was made by appellant for bribe. It was also argued that evidence in this case amply shows that the money was intended to be given to PW4 and not to appellant. Since PW4 was not present in the office, appellant received MO1 series from PW1, as CRA 697/01 & CRMC 1648/04 8 instructed by PW4 through DW2. He was not aware that it was bribe money. Still, appellant was illegally convicted, it is submitted. 11. Sri.R.Suraj Kumar, learned counsel appearing for petitioner in Crl.M.C., submitted that court below made adverse observations against DW1 and also directed a departmental enquiry to be conducted against him, but there is absolutely no reason for making such observations. Pointing out various aspects and evidence, it was argued that though evidence of DW1 is in favour of appellant, it is only consistent with other evidence and documents produced in this case but court below has taken a prejudicial view against DW1 and entered several adverse findings against him. DW1 was not even heard before passing adverse remarks against him and hence, adverse observations may be expunged, it is submitted. 12. Learned Public Prosecutor argued that on the totality of the evidence and circumstances, it cannot be said that the conviction is bad. The tainted currency notes (MO1 series) were seized from possession of appellant and it is also admitted CRA 697/01 & CRMC 1648/04 9 by him, but, he has no acceptable explanation for the same. In any case of trap, accused can raise a plea that he did not know it is bribe money and that it was not intended to be given to him and he is innocent etc. Such contentions may not be entertained, it is submitted. Appellant's conduct in first denying acceptance of MO1 series and thereafter, admitting the same during trap also. 13. According to learned Public Prosecutor, even if offence under Section 13(1)(d) may not lie for want of proof of demand, conviction under Section 7 cannot be disturbed, since “acceptance” of bribe is sufficient to prove under Section 7. Further, presumption which can be drawn under Section 20 of the Act against accused that he accepted bribe as a reward or motive to do something, but such presumption is not rebutted by appellant and hence, no interference is called for, it is submitted. 14. On hearing both sides, I find that it relevant to have a look at the relevant provisions first. Section 13 of the Act [excluding portions other than Section 13(1)(d) and 13(2)] reads as follows: “13. Criminal misconduct by a public servant.—(1) A public servant is said to CRA 697/01 & CRMC 1648/04 10 commit the offence of criminal misconduct,— (a) xxx or (b) xxx or (c) xxxx or (d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) xxx Explanation.—xxxx. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine”. (emphasis supplied) 15. Section 7 (excluding portions which are not very relevant for disposal of this case) is extracted hereunder: “7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing CRA 697/01 & CRMC 1648/04 11 to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations.—(a) xxxx. (b) “Gratification.” The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) xxxx (d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e)xxxx”. 16. A reading of Section 13 of the Act shows that to constitute offence under Section 13(1)(d) read with Section 13(2) of the Act, prosecution must prove that accused “obtains” any valuable thing or pecuniary advantage. The word, “obtain” is not defined under the Act. Going by the dictionary, the word “obtain” means “to secure or gain (something) as the result of request or CRA 697/01 & CRMC 1648/04 12 effort” (Shorter Oxford Dictionary); “to get something, especially by making an effort” (Oxford Advanced Learners Dictionary 5th edition). 17. Hence, to prove offence under Section 13(1)(d) of the Act against an accused, prosecution must establish that accused made effort to get any valuable thing or pecuniary advantage, as a public servant. This may be by request or demand. So, mere proof of recovery of tainted currency notes from possession of a public servant during trap or mere admission by accused that he received currency notes is not sufficient to convict him for offence under Section 13(1)(d) of the Act. Prosecution must adduce evidence to show that accused had taken effort to get such money by demand, request etc. 18. Of course, recovery of tainted currency notes during trap or admission of accused that he received the same may be one of the circumstances, which prosecution can rely upon, to prove that he “obtained” bribe money. But, that alone may not be sufficient to hold that accused “obtained”, as required under Section 13(1)(d) of the Act. It is the bounden duty of the CRA 697/01 & CRMC 1648/04 13 prosecution to prove either by direct or circumstantial evidence, all ingredients of offence under Section 13(1)(d) including the fact that accused “obtained” any valuable thing or pecuniary advantage i.e., he took effort to get valuable thing or pecuniary advantage by demand or request etc. From the facts and circumstances proved, court must be able to safely conclude that accused took effort by request or demand to get valuable thing or pecuniary advantage. 19. In C.K. Damodaran Nair v. Government of India ((1997) 9 SCC 477), referring to the word, “obtain” in Section 5(1)(d) [which corresponds to Section 13(2) of the 1988 Act] Supreme held that “demand” for bribe is a primary requisite for the offence under the said Section. Section 13(1)(d) of the Act also refers to the same expression “obtains” and hence, the same principle will apply to a case involving offence under the said section. The Supreme Court also made a distinction between the requirements of Section 161 (corresponding to Section 7) and Section 5(1)(d) (corresponding to Section 13(1)(d)) of the Act and also scope of presumption under the Act etc. and it is CRA 697/01 & CRMC 1648/04 14 held thus: “Obtain” means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)( d ) of the Act ”. (emphasis supplied). 20. However, to make out offence under Section 7 of the Act, it may not be imperative to prove in all cases that accused “obtained” bribe. Depending on the facts of the case, it may be enough, if it is proved that accused “accepted” any gratification other than legal remuneration. This is one of the major differences between offence under Section 13(1)(d) and Section 7 of the Act. The expression used in Section 7 is, “accepts or obtains” any “gratification”. So, while under Section 13(1)(d), it must be proved that pecuniary advantage or valuable thing is “obtained” by accused, depending on the facts of the case, it may be enough, if prosecution proves that accused “accepted” any gratification other than legal remuneration, to prove offence under Section 7 of the Act. CRA 697/01 & CRMC 1648/04 15 21. “Accept” is different from “obtain”. The word, “accept” is not defined under the Act. The word “gratification” is also not defined under the Act, though it is explained under the Act. As per Oxford Learners Dictionary 5th Edition, “gratification” means “something which gives you pleasure”. So, “gratification” does not mean the mere article, money or material which a person may receive. To constitute “gratification” under Section 7 of the Act, the article which he receives must give him some pleasure. 22. This will be clearer from Explanation (b) to Section 7 of the Act itself. As per the said provision, the word “gratification” is explained. It is laid down therein that “gratification” is not restricted to “pecuniary gratifications or to gratifications estimable in money”. It is curious to note that while explaining the word “gratification”, legislature used the very same expression “gratification” to qualify the term “pecuniary” and coined the word, “pecuniary gratification”. If money itself is “gratification”, it is unnecessary to qualify the word “pecuniary” by “gratification” but, it would be enough if it was described as CRA 697/01 & CRMC 1648/04 16 money itself. Therefore, the description “pecuniary gratification” itself indicates that “gratification” is some thing more than money or some valuable thing which is estimable in money. 23. In Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra ((1997) 10 SCC 600) Supreme Court, referring to the word “gratification” used in the Prevention of Corruption Act, 1947 held thus: “In the Oxford Advanced Learner's Dictionary of Current English, the word ‘gratification’ is shown to have the meaning ‘to give pleasure or satisfaction to’. The word ‘gratification’ is used in Section 4(1) to denote acceptance of something to the pleasure or satisfaction of the recipient”. 24. In Madhukar Bhaskarrao Joshi v. State of Maharashtra, ((2000) 8 SCC 571) at paragraph 12, it is held thus by Supreme Court: “the word “gratification” must be treated in the context to mean any payment for giving satisfaction to the public servant who received it”. 25. In this context, the meaning of the word “accept” can also be looked into, because it will further clarify the import of the word “gratification”. “Accept” means, “to take willingly CRA 697/01 & CRMC 1648/04 17 some thing that is offered” (vide Oxford Advanced Learners Dictionary 7th Edition). “Accept” pre-supposes an offer and unless something is offered, there cannot be acceptance. Therefore, a mere receipt of something is not “acceptance”. If a person merely receives some thing from another, without there being an offer from the latter, it is not “acceptance”. “Offer” means, some thing (money) which a person is willing to pay for some thing (vide Oxford Advanced Learners Dictionary 7th Edition). 26. Therefore, to hold that an accused “accepted” any “gratification”, under section 7 of the Act, prosecution must prove that some thing (may be money etc.) was offered by a person to accused for something and he willingly took the same from such person and in taking such thing, he gained some pleasure or satisfaction. Such facts have to be proved either by direct or circumstantial evidence. From the evidence adduced, (either direct or circumstantial) and other materials, court must be able to safely conclude that accused “accepted” “gratification” other than legal remuneration, as stated above. CRA 697/01 & CRMC 1648/04 18 27. Therefore, mere handing over money, by a person to accused, without there being an offer to accused for something and mere receipt of such money by accused, which does not give him any pleasure or satisfaction, will not constitute “acceptance” of any “gratification”. If a person merely hands over money to an accused which is meant to be given to another, it cannot be said that such money was offered to accused for doing some thing nor can it be said that receipt of such money by accused would give him any pleasure or satisfaction. Consequently, it cannot be said in that case that the accused “accepted” any “gratification” as required to prove offence under Section 7 of the Act. Therefore, it follows that mere recovery of tainted currency notes during trap from possession of accused or his admission of receipt such currency notes alone will not prove that accused “accepted” any gratification under Section 7 of the Act. 28. The Supreme Court, in Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra ((1997) 10 SCC 600), held, “if the money paid is not for personal satisfaction CRA 697/01 & CRMC 1648/04 19 or pleasure of the recipient it is not gratification in the sense it is used in the section.” In several other decisions also, the same view was followed by Supreme Court. In State of Assam v. Krishna Rao ((1973) 3 SCC 227) also, Supreme Court held, “the word “gratification” in Section 4(1) was to be given its literal dictionary meaning of satisfaction of appetite or desire; it could not be construed to mean money paid by way of a bribe”. 29. So, having discussed what is meant by “obtain”, “accept” and “gratification” in Section 13(1)(d) and Section 7 of the Act, I will analyse the evidence in this case to decide whether prosecution proved that appellant accepted any gratification, as referred to in Section 7 of the Act or obtained any valuable thing or pecuniary advantage to constitute offence under Section 13(1) (d) of the Act. PW1 is the alleged bribe-giver who was examined to prove