IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 CRL.A.No. 34 of 2002(A) ----------------------- CC.32/1999 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT(S): /ACCUSED: ----------------------- CYRIL JOSEPH, S/O. JOSEPH, UPPUVEETTIL, PAYYAMPALLY, MANANTHODY, WAYANAD. BY ADV. SRI.V.P.REGHURAJ RESPONDENT(S): /COMPLAINANT: ---------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM, VIGILANCE CASE 2/1997 OF VIGILANCE AND ANTI-CORRUPTION BUREAU, WAYANAD. BY PUBLIC PROSECUTOR SRI TEKCHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. APPEAL 34 of 2002 ------------------------------------------------------ Dated: DECEMBER 21, 2009 JUDGMENT The challenge in this appeal is to the judgment of the Enquiry Commissioner and Special Judge, Kozhikode in CC 32/1999 dated December 13, 2001 convicting the accused under secs.7 and 13(1) (d) read with sec.13(2) of the Prevention of Corruption Act of 1988 and sentencing him to undergo rigorous imprisonment for two years under each count and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months under sec.13(1)(d) read with sec.13(2) of the Prevention of Corruption Act. The sentence of imprisonment was ordered to run concurrently. 2. The case of the prosecution sought to be proved against the accused before the trial court was that while the accused was working as Village Officer of Payyambally village, Wayanad District, he demanded and accepted an illegal gratification of Rs.300/- from PW.1. the de facto complainant from the house of the accused for measuring his land and for preparing its SMC report and sketch for obtaining Pattayam, that at that time he again demanded a further bribe of Rs.5000/- from PW.1 for the same purpose and in pursuance of the said demand, he demanded and accepted Rs.500/- from PW.1 as Crl.A.34/02 2 gratification other than illegal remuneration for the same purpose on June 6, 1997 from his office, while he was caught red-handed and the tainted currency notes MO.1 series were recovered from him and that the accused has thereby committed the offences punishable under sec.7 of the Prevention of Corruption Act of 1988. It was also alleged that by the above said illegal act of the accused, he, by corrupt or illegal means or otherwise abusing his official position as a public servant, obtained for himself a pecuniary advantage to the extent of Rs.800/- and that thereby committed offence punishable under sec.13 (1)(d) and 13(2) of the Prevention of Corruption Act of 1988. 3. The accused on appearance before the trial court pleaded not guilty to the charge under secs.7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act of 1988. PWs.1 to 10 were examined and Exts.P1 to P19 were marked on the side of the prosecution. The prosecution has also produced M.O.1 series to M.O.6. PW.1 is the de facto complainant. He disowned Ext.P3, the complaint given by him to the Vigilance Dy.S.P., PW.9. PW.2 is the then Additional District Officer, Economics and Statistics Department, Kalpetta. He is an independent official witness to the trap. PW.3 is the special Village Officer of Payyambally Village. PW.4 was the then Deputy Collector, Land Tribunal, Ambalavayal. PW.5 is the then Tahsildar, Mananthawady Taluk under whom Payyambally Village Office Crl.A.34/02 3 functioned. PW.6 is the then Sub Registrar, Mananthawady who produced Ext.P14 the certified copy of title deed of PW.1 over the property. PW.7 is the then Assistant Commissioner, Land Revenue Commissionerate, Thiruvananthapuram, who proved Ext.P15, the order of sanction. Pw.9 is the trap laying officer. PW.8 is the Inspector attached to VACB, Wayanad, who conducted investigation. PW.10 is the successor-in-office of PW.9 who laid the charge. When questioned under sec.313 of Cr.P.C. the accused denied having committed any offence. His case was that the tainted currency notices were thrust into his pocket by PW.1, the de facto complainant and that as he has registered a case against one Ammini for illegal cutting of rosewood tree from Government land, one Thankachan, brother of Ammini, in collusion with PW.1 foisted this case against him. No defence evidence was adduced. 4. The lower court on an appreciation of evidence found the appellant/accused guilty of the offences punishable under secs.7 and 13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of 1988, convicted him thereunder and sentenced him as aforesaid. The accused has challenged his conviction and sentence in this appeal. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 6. The following points arise for consideration:- Crl.A.34/02 4 I. Whether the accused is a public servant as defined under sec.2(c) of Prevention of Corruption Act of 1988? II. Whether the order of sanction Ext.P15 sanctioning prosecution against the accused is legal and valid? III. Whether the prosecution has proved that the accused demanded and accepted a bribe of Rs.300/- from PW.1 from his house in April 1997 and demanded a further bribe of Rs.5000/- from PW.1 as a motive or reward for measuring the land for PW.1 and for preparing its SMC report and sketch for obtaining Pattayam. IV. Whether the prosecution has proved that the accused demanded and accepted a bribe of Rs.500/- from PW.1 for the same purpose from his office on June 6, 1997? V. Whether the conviction of the appellant by the lower court under secs.7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 can be sustained? VI. Whether the sentence imposed is excessive or unduly harsh? Points I and II 7. It is not disputed and proved by the evidence adduced by the prosecution especially by Ext.P13, copy of the proceedings of the District Collector, Wayanad, dated 27.5.1996 whereunder the accused Crl.A.34/02 5 was transferred and posted as Village Officer, Payyambally. Ext.P12 the joining report dated 23.8.2996, Ext.P6 the attendance register of Payyambally Village Office, and Ext.P15 the sanction order issued by the Commissioner of Land Revenue, Thiruvananthapuram for prosecuting the accused that during the relevant period the accused was working as Village Officer, Payyambally. Therefore he is a 'public servant' as defined under sec.2(c) of Prevention of Corruption Act of 1988. The finding of the lower court on this point is confirmed. 8. Ext.P15 is the order of sanction issued by the Commissioner of Land Revenue, Thiruvananthapuram, sanctioning prosecution against the accused, the validity of which is not seriously disputed in this appeal and which is also proved by PW.7, the Assistant Commissioner. Therefore I confirm the finding of the lower court that Ext.P15 order of sanction is legal and valid. Point No.III 9. PW.1, the de facto complainant, turned hostile and did not support the prosecution. The case of Pw.1, de facto complainant, as revealed from Ext.P3, the F.I. Statement in short is that his 50 cents of land in payyambally village in re-survey was shown as belonging to Thrissilery Devaswom, that to establish his right over the same he required Pattayam for which SMC sketch and report prepared by the Village Officer is necessary, that for that purpose he handed over an Crl.A.34/02 6 application form from the Tribunal with copies of his title deed and revenue receipts in April 1997 to the accused from his house, that at that time the accused demanded and accepted Rs.300/- from PW.1 as illegal gratification for meeting the expenses, that the accused expressed his dissatisfaction and demanded a further bribe of Rs.5000/- which on the request of PW.1 was agreed upon to be paid in instalments with the first instalment of Rs.500/- to be paid at his office in the morning of June 6, 1997 and that as PW.1 was not willing to pay the bribe he met PW.9, the then Dy.S.P., Vigilance, Wayanad and gave Ext.P3 complaint. But as PW.1 he testified that the accused never demanded bribe either in April 1997 or on the date of the trap. Therefore the prosecution has failed to prove that in April 1997 the accused demanded and accepted a bribe of Rs.300/- from PW.1 for the purpose of measuring his land and preparing sketch and that at that time he demanded a further bribe of Rs.5000/-. The finding of the lower court on this point is confirmed. Point Nos.IV and V 10. The next point to be considered is whether the accused has demanded and accepted a bribe of Rs.500/- from his office on June 6, 1997 for the purpose of measuring his land and preparing SMC sketch and report for obtaining Pattayam and accepted the same. Counsel for the revision petitioner argued that as PW.1 turned hostile and as Crl.A.34/02 7 there is no evidence for the demand of alleged bribe by the accused, the prosecution has not succeeded in establishing its case. The Public Prosecutor appearing for the prosecution has argued that there is sufficient legal and acceptable evidence to prove that the accused demanded and accepted a bribe of Rs.500/- from PW.1 on June 6, 1997 from his office. As regards the acceptance of bribe, there is , in my view, unassailable evidence for recovery of the tainted currency notes from the accused. 11. PW.9 is the trap laying officer. He recovered the trap money from the accused. He testified before the trial court thus: On June 6, 1997 Pw.1 came to his office and gave Ext.P3 F.I. Statement stating that the accused has demanded and accepted a bribe of Rs.300/- in April 1997 for measuring the land of PW.1 and preparing the sketch and that he further demanded a bribe of Rs.5000/-, out of which Rs.500/- has to be paid on June 6, 1997. He registered the FIR Ext.P3(a) and arranged for a trap with the assistance of PW.2 and CW.3, two Government Officials. PW.1 produced the trap money, ten currency notes of Rs.50/- each, MO.1 series. PW.9 prepared Ext.P5 mahazar in the presence of the witnesses and treated MO.1 series currency notes with phenolphthalein powder. He returned the currency notes to PW.1 with a direction to handover the same to the accused if demanded. After complying with the legal formalities they Crl.A.34/02 8 proceeded to the office of the accused. On reaching the office of the accused, he sent PW.1 along with a constable to the office room of the accused. The constable waited outside and PW.1 went inside. A few minutes later, on receiving the signal from PW.1, the trap party rushed to the office room of the accused. PW.9 disclosed his identity and questioned the accused whether he had received any money from PW.1. The accused got bewildered and took out a bundle of currency notes from his pocket and placed it on the table. Phenolphthalein test on his right hand and on the currency notes proved positive. On examining the currency notes it was found that MO.1 series currency notes were placed inside a Rs.100/- note, MO.3. Phenolphthalein test conducted on MO.3 also found to be positive. Thereafter the house of the accused was searched. 12. PW.9 was seen elaborately cross-examined by the defence counsel. No serious discrepancies or inconsistencies were brought out during his cross-examination. When cross-examined he asserted that PW.1 came to his office and gave Ext.P3 statement which he has truly and correctly recorded, that PW.1 told him that the accused demanded and accepted a bribe of Rs.300/- in April 1997 from his house for preparing SMC sketch and plan, that accused further demanded a bribe of Rs.5000/- and of which Rs.500/- has to be paid on June 6, 1997. There is nothing to show that he has any enmity towards the Crl.A.34/02 9 accused. His evidence is fully supported by PW.2, the independent official witness to the trap. Therefore the lower court is perfectly right in believing his evidence that PW.1 told him that the accused demanded and accepted a bribe of Rs.300/- in April 1997 and that accused further demanded a bribe of Rs.5000/- out of which Rs.500/- has to be paid on June 6, 1997 from his office and that subsequently the trap money was recovered from the accused. 13. PW.2, the independent official witness to the trap, supported Pw.9 on all material particulars. He is the then Additional District Officer, Economics and Statistics, Kalpetta. He gave a consistent version regarding the pre-trap formalities conducted in the office of PW.9 and the laying of trap. He would say that on seeing the trap team, accused took out the MO.1 series currency notes from his pocket and placed it on the table. Cross-examination was not successful in eliciting any discrepancy or defect in his version which is fully in accordance with that of PW.9. He has no pre-acquaintance with the accused or any enmity towards the accused. He is a truly and independent witness. Therefore the lower court is right in accepting his evidence. 14. The next question for consideration is whether the version of the accused that PW.1 thrust the MO.1 series currency notes into the pocket of the accused can be believed or not. For several reasons Crl.A.34/02 10 I am not inclined to accept the above story of the accused. Firstly, the MO.1 series currency notes were found inside a one hundred rupee note, MO.3. It is unlikely that by thrusting the currency notes into the pocket, the said currency notes will get inside the MO.3 currency note. Secondly, such a case was developed in the course of the trial. He did not take such a plea at the time of trap. Lastly, the story put forward by the accused is, in my view, an improbable one. Therefore the lower court is perfectly right in rejecting the said story put forward by the accused. In my view, the accused put forward such a story only to escape from liability. 15. The next point to be considered is whether the evidence referred to in the foregoing is sufficient to hold that the prosecution has succeeded in establishing the offence charged against the accused. On the other hand, the question is whether the presumption under sec.20 of the Prevention of Corruption Act, 1988 is available for the prosecution. Counsel for the accused argued that PW.1/de facto complainant turned hostile and stated that the accused never demanded any bribe, that there is no evidence of demand of the bribe by the accused and that therefore the presumption under sec.20 of the Prevention of Corruption Act cannot be raised in this case. I am unable to agree. In M.Narasinga Rao v. State of Andhra Pradesh (AIR 2001 SC 318) the Apex Court has held that once the Crl.A.34/02 11 prosecution has established that the gratification is paid and the accused has accepted the same, the presumption under sec.20 of the Prevention of Corruption Act can be raised. In Narasinga Rao's case, the de facto complainant and an independent witness turned hostile and did not support the prosecution. Even then the Apex Court has raised a presumption under sec.20 of the Prevention of Corruption Act, 1988 and observed that the condition for drawing a legal presumption under sec.20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In the present case I have found that the prosecution has succeeded in proving that the accused has accepted the bribe. That being so, the contention of the accused that as PW.1, the de facto complainant did not support the prosecution, the presumption under sec.20 of the Prevention of Corruption Act cannot be raised, has only to be rejected. 16. It is proved by the evidence of PW.9, Dy.S.P. and PW.2, the official witness to the trap, that P.W.1 has paid the gratification and the accused has accepted the same. I have found that the explanation offered by the accused that PW.1 forcibly thrust the currency notes into the pocket of the accused is not a probable one. That being so, the presumption under sec.20 of the Prevention of Corruption Act is available for the prosecution. That apart, the demand is implicit in the entire affair. Therefore, in the light of the Crl.A.34/02 12 principles laid down in the above decision and from the proved facts in the case, it can be legitimately presumed that the accused has demanded and accepted an illegal gratification of Rs.500/- from PW.1 on June 6, 1997 from his office as a motive or reward for measuring his land and preparing SMC report and sketch. Therefore I hold that there is legally acceptable evidence sufficient to make out an offence under sec.7 of the Prevention of Corruption Act, 1988. That being so, in my view the trial court is perfectly justified in convicting the accused under sec.7 of the Prevention of Corruption Act. The trial court is also correct in convicting the accused under secs.7 and 13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of 1988 as he had obtained a pecuniary advantage to the extent of Rs.500/- while he was holding the position as a public servant. Therefore, I confirm the conviction of the appellant/accused under secs.7 and 13(1)(d) read with sec.13(2) of Prevention of Corruption Act, 1988. Point No.VI 17. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for two years under each count and a fine of Rs.5000/- under sec. 13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of 1988. The incident occurred in the year 1997. The amount involved is only Rs.500/-. Counsel for the appellant submitted that the appellant is aged 60 and is now dismissed from Crl.A.34/02 13 service. Taking into consideration all these facts, I feel that the substantive sentence imposed by the trial court can be reduced to rigorous imprisonment for one year. The sentence of fine is maintained. In the result the revision petition is allowed in part. The conviction of the revision petitioner under secs.7 and 13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of 1988 is confirmed. The substantive sentence imposed by the trial court is reduced to rigorous imprisonment for one year under each count. The sentence of fine imposed by the trial court is maintained. His bail bonds are cancelled. The accused shall surrender before the trial court on or before 30.1.2010 to receive his sentence. P.Q. BARKATH ALI, JUDGE mt/-