IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 CRL.A.No.933 of 2001(A) ----------------------------- CC.33/1999 of COURT OF ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM. .................... APPELLANT/ACCUSED: --------------------------- C.N.VIJAYAN, S/O KRISHNAN NAIR, THUNOOR HOUSE, VADAVANKODE, ERNAKULAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.S.VIJAYAKUMAR RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.933 of 2001 ------------------------------------------------ Dated this the 4th day of April, 2008 JUDGMENT The appellant is the accused in C.C.33/99 on the file of the court of the Enquiry Commissioner and Special Judge, Thrissur. He was convicted for offence under Section 7 of the P.C. Act as also under Section 13(1)(d) of the P.C. Act read with Section 13(2) thereof and was sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for a term of one year under Section 7 of the P.C. Act and to undergo rigorous imprisonment for a term of four years under Section 13(1)(d) of the P.C. Act read with Section 13(2) thereof with benefit of concurrency and right of set off. 2. The case had its genesis as follows:- PW3/the de facto complainant gave Ext.P6 F.I.Statement to PW7/the Dy. S.P. of Vigilance, Crl. Appeal No.933 of 2001 -2- Ernakulam complaining that the appellant who was Bench Clerk of Land Tribunal, Ernakulam demanded for himself and for the Tahsildar who is functioning as the Land Tribunal an amount of Rs.10,000/- by way of bribe for expediting the proceedings in S.M.P.126/91 wherein the father of PW3 was claiming the right to purchase an extent of 1 acre and 36 cents that being property in his residential occupation. PW7 recorded Ext.P6 F.I.statement at 4.00 p.m. on 24/07/97 and on the basis thereof he registered this case against the appellant as also against the Tahsildar Tribunal as Vigilance Case No.5/97 drawing up Ext.P6(a) F.I.R. Thereafter on 25/07/97 PW7 prepared Ext.P8 Entrustment mahazar incorporating therein all the formalities adopted by him by way of pre-trap formalities and took into banthavasth MOI currency notes produced by PW3 applying phenolphthalein powder thereon and entrusted them with PW3 for being delivered over to the Crl. Appeal No.933 of 2001 -3- appellant in case he repeats the demand for bribe, procuring the presence of two independent witnesses as well. The trap team consisting of PW7 and Vigilance officials under him along with PW3, CW3 and PW4 proceeded at 9.20 a.m. to the Municipal office premises at Aluva where at the relevant time the Tribunal was holding camp sitting. On receiving signal regarding receipt of trap money, PW7 and members of his team approached the appellant; questioned him; conducted search of his body and consequent on seizure of MOI series currency notes from the loin of the appellant PW7 prepared Ext.P9 Seizure Mahazar after complying with all formalities usually followed in the course of trap and describing therein all the formalities that were adopted in the seizure. Thereafter, the appellant along with the seized articles and the relevant records were produced before court. PW7 questioned the witness and completed the Crl. Appeal No.933 of 2001 -4- investigation in the case and submitted Final Report before the Court of the Enquiry Commissioner and Special Judge, Thrissur charge sheeting the appellant alone for offence under Section 7 and Section 13(1)(d) of the P.C. Act, 1988 read with Section 13(2) thereof. 3. On appearance of the appellant in the court below pursuant to issuance of summons, he was served with copies of all relevant records in the case. He engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offences punishable under Sections already stated; was read over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. The charge against the appellant is that he being a public servant in his capacity Crl. Appeal No.933 of 2001 -5- as L.D. Clerk in the office of the Special Tahsildar, Land Reforms, Ernakulam demanded illegal gratification from PW3 Subran, son of Purushothaman in May 1997 in connection with S.M.P.126/91 wherein his father has sought for effecting purchase of the holding held by him on tenancy arrangement; that he reiterated the demand during the same month and demanded Rs.100/- per cent as illegal gratification totalling to Rs.10,000/- and odd about 10.45 a.m. On 23/07/97 and pursuant thereto he received Rs.4,000/- as illegal gratification from PW3 at 11.25 a.m on 25/07/97 from the premises of the Post Office, Aluva near the municipal building where the sitting of the Land Tribunal was being held, as a motive or reward for expediting the trial and disposal of S.M.P.126/91 showing favour to him in exercise of his official functions and thereby committed offence under Section 7 of the P.C. Act, 1988 and further, that in the course of Crl. Appeal No.933 of 2001 -6- the same transaction, he committed criminal misconduct by abusing his official position to obtain undue pecuniary advantage to the tune of the above sum by corrupt or illegal means and without any public interest and thereby committed also offence punishable under Section 13(1)(d) of the P.C. Act read with Section 13 (2) thereof. 5. Consequent on denial by the appellant of the charge, the court below conducted trial of the case. On the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P14 were got marked and MO.I series to MO.X were got identified. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. 6. According to the appellant, while he was passing through the main gate of the Crl. Appeal No.933 of 2001 -7- Municipal Office entrance after having his tea PW3 came near him saying that he has to tell something in secret and called him to the road in front of the municipal office and told him that the Tahsildar (Land Tribunal) had asked for some cash and he had brought it; that he has to give it to the Tahsildar but the Tahsildar has not come and thereupon, he told him that he may give it direct. According to the appellant, thereupon, PW3 told him that people have assembled in the upstairs and therefore, he will not be able to pass on the cash there; and that telling him that the amount can be passed on to the Tahsildar when he alights from the bus to come to the office, PW3 invited him also and they walked towards the bus stop and beneath the shadow of a tree near the Rest House they remained talking, but the Tahsildar did not arrive there till 10.55 a.m. and therefore, he told PW1 that the Tahsildar might have come over to the office Crl. Appeal No.933 of 2001 -8- through some other way and that it is time to start sitting of the Tribunal he returned to the office; and that PW3 also accompanied him up to the entrance of the conference hall where by that time the Tahsildar had come over to commence sitting of the Tribunal. According to the appellant, the attempt of PW3 was to pass on the amount to the Tahsildar through him, but he was coming over to the conference hall avoiding that and at the entrance of the conference hall when he saw the Tahsildar, PW3 expressed inability to pay the amount to the Tahsildar then and told him that it is enough that he passes on the amount to the Tahsildar saying that he had given it, and then he advised PW3 to wait till sitting is over so that he can pass it on direct to the Tahsildar. According to the appellant, PW3 saying that he has to meet another person, forcibly placed the cash in his hand requesting him to pass it on to the Tahsildar Crl. Appeal No.933 of 2001 -9- and immediately the Dy. S.P. and Inspector of Vigilance rushed in and caught his hands; introduced themselves and questioned him as to whether he has received cash and then he answered that he has not received cash but that the amount was being forcibly placed in his hands asking him to deliver it over to the Tahsildar and thereupon, the Dy. S.P. got infuriated and told him that he may say all that before court and asked him to place the cash within his loin and he obeyed the directions fearing bodily harm at the hands of the Vigilance Officials; that thereupon, they took him to the hall wherein the sitting of the Tribunal was going on; that PW3 had come over to the office of the Tribunal on one or two occasions and has talked to the Tahsildar, but he had not talked to him and that PW3 was talking to him for the first time only on 25/07/97 and that he has neither demanded nor received any bribe. Crl. Appeal No.933 of 2001 -10- 7. On the defence side DW1 is examined. The Special Judge (Vigilance) heard arguments of both sides and considering the case in the light of the evidence adduced as aforesaid found that the appellant has demanded and received the amount of Rs.4,000/- by way of illegal gratification and consequently, found him guilty of offence under Section 7 of the P.C. Act and also under Section 13(1)(d) of the Act read with Section 13(2) thereof; convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved appellant. 8. It is vehemently contended before me by the learned counsel for the appellant that even in the F.I.statement given by PW3 his case is that demand for bribe was made by the appellant for himself as also for the Tahsildar, but that the case was being charge sheeted only against the appellant and the Tahsildar was being questioned only formally Crl. Appeal No.933 of 2001 -11- and that too after more than a year of registration of the crime; that the investigating agency only wanted a case to be registered and charge sheeted for the purpose of their statistics; that there is absolutely no evidence that any amount was demanded by the appellant to PW3 or that PW3 placed the currency notes in his hands pursuant to a demand for bribe and that the evidence tendered by PW3 himself contradicts the F.I.statement given by him; and that the case has been falsely foisted by PW3 who is a politician in consultation with the Secretary of the District Committee and that a proper appreciation of the entire evidence in the case will improbabilise the case of the prosecution and will establish the case of the appellant that the case was falsely being foisted against him. 9. The counsel for the appellant has taken me through the entire evidence in the Crl. Appeal No.933 of 2001 -12- case to contend that there is no corroborated evidence to establish the guilt in the appellant and that the evidence adduced by the prosecution looms large with inconsistencies which would improbabilise the prosecution case. 10. PW3 is the de facto complainant in the case. It is on the basis of Ext.P6 F.I.statement given by PW3 that the crime in this case is registered drawing up Ext.P6(a) FIR by PW7/the Dy. S.P of Vigilance. Going by the allegations in Ext.P6 F.I.statement, the case of PW3/the de facto complainant is that an application as S.M.P.126/91 had been filed before the Land Tribunal, Ernakulam by his father Purushan for assignment of landlord's rights; that despite several postings and adducing of evidence, the case was not being disposed of and he was attending to the case as his father was aged; that after his transfer to Angamali section of Kerala Water Crl. Appeal No.933 of 2001 -13- Authority his duty was mostly during night and therefore, he was appearing before the Land Tribunal on all posting dates of the case without fail; that after the initiation of S.M.P.126/91 several Land Tribunals who had taken charge were transferred and that the present Tahsildar took charge about five months back and despite his taking charge also no progress was seen in their case and therefore, he made enquiries with clerk Vijayan (the appellant) and then he told him that the purpose can be achieved only if their share is paid. .............................. .............................................. are the words spoken to by the appellant as stated by PW3 in Ext.P6 F.I. Statement given on 24/07/97. According to PW1, he enquired as to what amount will have to be paid and then the appellant told him that he will ascertain it from the Tahsildar (PW5) and tell him during next sitting of the Tribunal. According Crl. Appeal No.933 of 2001 -14- to PW3, there was yet another sitting also of the Tribunal during the very same month and then he asked the appellant as to what the Tahsildar has said and thereupon, it is alleged that the appellant told him that amount at the rate or Rs.100/- per cent for an extent of one acre which comes to Rs.10,000/- has to be paid as informed to him by the Tahsildar (PW5) and that the appellant further told him that the amount is for the Talsildar and for himself. It is his case that he told the appellant that the entire amount cannot be raised all of a sudden and that it would be paid in three - four months. He further, stated that on the day previous to his giving Ext.P6 F.I. Statement viz. on 23/07/97 he had gone over to the upstairs of the Municipal office building at Aluva where the Tribunal is holding sitting and met the appellant by about 10.45 a.m and asked him as to when is the next sitting and then he came to understand that Crl. Appeal No.933 of 2001 -15- sitting is scheduled also for 25/07/97 and that he left leaving word to the appellant that he will come on 25th with amount due to be paid to the Tahsildar. It is also stated by him that he had told the appellant that he will bring Rs.4,000/- the next day and the balance will be paid in two instalments of Rs.3,000/- each within a month and then the appellant told him to bring so much as is available and that paying the said amount they will together have a discussion with the Tribunal as regards the balance amount. Though according to PW3, he agreed to bring the amount, he is not interested in paying bribe and getting things done especially when legally he is entitled to obtain purchase certificate in relation to the land in their possession for the last forty five years and that he became aware that his case was being protracted only for the purpose of receiving such bribe for the Tahsildar and for the Crl. Appeal No.933 of 2001 -16- appellant; that he is aware that in case the amount is not paid grant of purchase certificate will be still delayed and that he is prepared to produce Rs.4,000/- before the Vigilance that being the amount that he has agreed to pay the appellant on the 25th of July, 1997. 11. The inconsistency in evidence that has been pointed out by the learned counsel for the appellant from the case stated by PW3 in Ext.P6 F.I.statement are the following:- 1) That PW3 has stated in chief examination that the appellant told him that purchase certificate can be issued only if their share is received and the appellant asked him as to what he can pay and thereupon, he asked the appellant as to what will have to be paid and then the appellant told him that amount worked out at Rs.100/- per cent has to be paid but however, that in relation to 36 cents that can be ignored and amount need be Crl. Appeal No.933 of 2001 -17- paid only in relation to one acre and it was thus that Rs.10,000/- was demanded as bribe. Thus, while giving evidence he has no case that the appellant told him that he will ask the Tribunal as to what is the amount that he has to pay and tell him but the appellant himself was declaring the demand. Thus, while tendering evidence PW3/the de facto complainant has telescoped the two meetings which is stated in the F.I. statement as having taken place during May, 1997. 2) While giving evidence as PW3, the de facto complainant has deviated from his versions in Ext.P6 F.I.statement and has stated that on July 23rd of 1997 the appellant asked him in confidence in the courtyard of the Municipal office at Aluva as to whether the amount is ready and that was between 10.30 a.m and 11.00 a.m while he was waiting in the courtyard and the appellant was proceeding to take tea. He has deposed that there was Crl. Appeal No.933 of 2001 -18- postings for his case on 25/07/97 and he had come over to the conference hall where the Tribunal is holding sitting and then, the appellant had not come and he was waiting in the courtyard of the Municipal office. He stated that when the appellant asked him as to whether the amount is ready he enquired with the appellant as to what is the improvement that is made in his case and to the query made by the appellant he has stated that the entire amount will not be available and that some amount can be paid and the balance can be paid in instalments for which some time has to be granted and thereupon, he offered to come over with the amount available on the next sitting date, without disclosing as to what is the amount that would be brought by him. PW3 has pleaded ignorance when asked as to why such demands made by the appellant were not disclosed in Ext.P6. He also stated that the Land Tribunal is holding sitting in the second Crl. Appeal No.933 of 2001 -19- floor of the Municipal office at Aluva and that on 23rd he has not met the appellant there and he has not asked about the posting of the case as he is already aware of the posting of the case. Further, he has deposed in cross examination that he had not told any one that he would bring Rs.4,000/- on 25th. Again further down in cross examination (at page 83) he has stated contrary to what he has stated earlier that on 23rd July, he was meeting the appellant in the court hall after the forenoon sitting and that was by about 1.00 p.m. as by the time he reached, the Tribunal has started functioning and therefore, he could not talk to the appellant and it was therefore, that he talked to the appellant after the court sitting. This goes against his statement that he talked with the appellant in the courtyard of the Municipal office at about 10.30 a.m on 23/07/97. When specifically asked as to whether he was not uttering falsehood Crl. Appeal No.933 of 2001 -20- earlier that on 23rd of July, 1997 he met the appellant at 10.45 a.m he has stated that he has met the appellant only once on 23rd and that was in the court hall. This means that he was meeting the appellant only at 1.00 p.m and not in the forenoon in the courtyard of the Municipal office. To a specific question he has answered that he was parting with the appellant leaving word that he would come with the amount to be paid to the Tahsildar and that was with the knowledge that there is sitting on 25/07/97 and what he was having in his mind was to pay the entire amount and if the entire amount cannot be procured he would meet the appellant with whatever money is available. He stated further that he was not having any amount then and he had not intended as to what should be the amount to be paid on 25th and that it is after discussion with Dy. S.P. (PW7) that it was decided that Rs.4,000/- can be paid as the Dy. S.P. instructed him Crl. Appeal No.933 of 2001 -21- that the case will become strong only if at least Rs.4,000/- is paid as bribe. When specifically asked as to whether while giving Ext.P6 F.I.statement he has not stated that Rs.4,000/- was offered to be paid on 25th and the balance in two instalments at the rate of Rs.3,000/- each within one month, he has stated that there was no occasion at all to tell the appellant in that manner. In view of the two versions as regards the time at which he met the appellant namely as being at 10.45 a.m in the courtyard of the Municipal office and that 1.00 p.m. in the Municipal hall where the Tribunal is holding sitting he was specifically asked in cross examination as to whether he was meeting the appellant at 10.45 a.m or at 1.00 p.m. He has stated that what he has deposed before court is correct without specifying as to the time. This could probably be for the reason that he did not want to invite trouble by saying that what he told to Crl. Appeal No.933 of 2001 -22- the police is correct and what he stated before court is false. Again at page 85, he has stated that he enquired to the appellant as to when is the next sitting when he met him on 23rd. This is contrary to what he has stated in page 33 wherein he has asserted that on 23rd he had not met the appellant nor did he ask about the posting date of the case as he was aware even earlier as regards the posting date. At the same time, when asked as to whether he has stated in Ext.P6 that he enquired as to when is the next sitting and then came to know that there is sitting on 25/07/97 he has stated that he might have told so in the F.I. Statement; and 3) As regards meeting the Dy. S.P. PW3 has stated in the beginning of cross examination at Page 13 of his deposition as PW3 that he was going to the Vigilance office for the first time in May 1997 and then he met PW7 Poulose/the Dy. S.P and told him the Crl. Appeal No.933 of 2001 -23- details and then he did not write down anything and instructed him to come after giving promise and with the money that has to be paid. At page 27 of his deposition he has stated that he had gone to the Vigilance in May and it is thereafter that he has gone to the Tribunal in July and that he was meeting the Vigilance Dy.S.P as instructed by A.P.Varkey/the District Committee Secretary. He has also stated in his deposition (at Page 43) that prior to 24/07/97 he had gone to the Vigilance Dy. S.P on three occasions and that on all the occasions, he has told about his complaint. According to PW7/the Investigating Officer who has recorded Ext.P6 F.I.statement of PW3 and registered the crime on 24/07/97, he has no acquaintance with PW3 prior to recording of Ext.P6 and that though he does not recollect as to whether he has seen PW3 prior thereto he is not aware of the matters stated in Ext.P6 prior to Ext.P6 and further Crl. Appeal No.933 of 2001 -24- that he had not instructed to have the amount paid to