IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 CRL.A.No. 785 of 2002(A) ------------------------ AGAINST THE JUDGMENT DATED 31/08/2002 IN CC.1/2001 (RC15(A)/2000/SPE/KER) OF THE SPECIAL COURT (SPE/CBI)-1, ERNAKULAM .................... APPELLANT/ ACCUSED --------------------- N.ANGAMUTHU, SENIOR ASSISTANT, NATIONAL TEXTILE CORPORATION, STAFF TRAINING COLLEGE, PEELAMEDU, COIMBATORE. BY ADV. SRI.K.V.VINODKUMAR SRI.S.RAJEEV SRI.M.RATHNA SINGH(SR) RESPONDENT/ COMPLAINANT -------------------------- THE SUPERINTENDENT OF POLICE, CBI-SPE- COCHIN-17, REPRESENTED BY THE SPECIAL PROSECUTOR, CBI, HIGH COURT OF KERALA. BY SRI.P.CHANDRASEKHARAN PILLAI (VENNELA), SC FOR CBI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: "CR" P.S.GOPINATHAN, J. ---------------------- Crl.A.No.785 OF 2002 --------------------------- Dated this the 14th day of February, 2011 J U D G M E N T ~~~~~~~~~~~ Appellant is the accused in CC.No.1/2001 on the file of the Special Judge (SPE/CBI)-I, Ernakulam. He was prosecuted by the Superintendent of Police, CBI/SPE, Cochin-17 alleging offences under Sections 7 and Section 13(2) read with 13(1)(d) of the Prevention of the Corruption Act, 1988 (hereinafter referred to as the PC Act), and sentenced to rigorous imprisonment for three years under both heads and also to pay a fine of rupees one lakh under Section 7. Assailing the above conviction and sentence, this appeal was preferred. 2. The brief facts leading to the prosecution is that the appellant was employed as Senior Assistant in National Textile Corporation, Training College, Peelamadu, Coimbathoor and as such he was a public servant as defined u/s. 2(c) of the PC Act. PW1- K.E. Viju was acquainted with the appellant. Appellant stated to PW1 that there were vacancies of the Deputy Manager in National Textile Corporation and by exercising his influence over the appointing authority he could secure job CRL. A. 785/2002 2 in the post of Deputy Manager for graduates having degree in Business Management on payment of rupees two lakhs. The brother of PW1 was a graduate in Business Management. When the appellant repeatedly offered, PW1 thought of securing a job for his brother. PW1 expressed his desire to the appellant. Then it was stated that there were other vacancies also and if other persons are interested, he could arrange job for them also. The offer and demand was made on 2.9.2000. PW1 agreed to pay provided job is secured. Appellant demanded immediate payment of two lakh rupees. When PW1 expressed difficulty, the appellant stated that at least fifty thousand rupees should be paid on or before 5.9.2000. PW1 conveyed the matter to his brother who was examined as PW2. PW2 agreed. PW2 then conveyed the same to his classmates Prasad and Rajeev (PW3) who informed to their another frend Jithu (PW4). All of them agreed. On 5.9.2000 the appellant arrived at Cochin and stayed at Woodlands Hotel at Ernakulam of which PW8 is a partner. Getting information, PW1 along with PWs 2, 3, 4 and Prasad went to the Woodlands Hotel and meet the appellant. PW2, 4 and Prasad had brought Rs.50,000/- each. Appellant repeated his offer. When asked whether any receipt for the payment of the amount would be issued, the appellant offered that he could give receipt in CRL. A. 785/2002 3 stamped paper. Accordingly, PWs 1 to 4 brought four fifty rupees stamp papers. PWs 2 and 4 and Prasad paid Rs.50,000/- each. For the amount paid to PW2, Ext.P1 receipt in stamp paper was given. To Prasad and PW4, Exts.P2 and P3 receipts were given. According to the prosecution, PW3 had not brought money. The appellant along with PW3 went to the house of PW3 at Kallambalam in a taxi and from there Rs.50,000/- was given. Thereafter, the appellant called PW1 on occasions and stated that steps for issuing appointment orders were in progress and demanded to pay the balance amount of Rs.1,50,000/- each for arranging the appointment order. PW1 expressed inability to pay immediately. Then the appellant asked to pay Rs.50,000/- as 2nd instalment and offered to come on 5th October. Somehow or other, PWs 1 to 4 and Prasad decided not to seek employment on paying bribe. The matter was reported to the Superintendent of Police, CBI on 4.10.2000. As asked by the Superintendent, Ext. P4 FIS was given by PW1 before PW11, the inspector, CBI ON 6.10.2000. On the basis of Ext.P4, a case was registered as Crime No.R.C.15A/2000 for which Ext.P4 (a) FIR was prepared. In the meanwhile, responding to the call of the appellant to go over to Coimbatore and pay the balance amount, PW1 replied that as he had to go to Guruvayoor, he was not able to reach CRL. A. 785/2002 4 Coimbatore. Thereupon, the appellant agreed that he would come over to Guruvayoor on 7.10.2000 and locate PW1 for which phone number was collected. Getting this information, PW11 made arrangements for trapping. PW1 provided Rs.10,000/- for that purpose. Currency notes, which are marked as MO3 series, were smeared with phenolphthalein powder. 3. PW.11 procured PW.5 and PW.10, two officials - one employed in the Canara Bank and another employed in the Oriental Insurance Company. They were demonstrated about the process of trapping for which Ext.P5 Mahazar was prepared and then they proceeded to Guruvayur along with PW.1 on 6.10.2000 and lodged at Thulasidalom lodge. At 6.00 a.m. on 7th the appellant contacted PW1 over phone and informed that the appellant was staying at Aryabhavan lodge and requested PW1 to go over in front of the lodge. PW1 along with PW11 and party proceeded to Aryabhavan. The currency notes smeared with phenolphthalein powder were entrusted back to PW1 with instruction to pay to the appellant only on demand. PW.1 and the other officials as well as the witnesses took positions. Appellant was waiting in front of the lodge. PW.1 went over to the appellant who asked whether PW11 had brought the money. PW1 answered affirmatively and handed over MO3 series which the appellant accepted. Then they walked CRL. A. 785/2002 5 ahead talking about employement. PW.11 then approached and disclosed his identity. The bribe money was in the hands of the appellant. PW11 asked the appellant to hand over M.O.3 series to PW.5 and thereafter, phenolphthalein test was conducted. Result was positive. The appellant was arrested. Ext.P5 contains the serial number of the currency notes. The identity of the currency notes were verified with reference to Ext.P5. Ext.P6 narrates the process of trapping including the recovery of MO3 series from the appellant. The investigation was later taken over by PW.14, another Inspector, who, after completing the investigation, laid the charge sheet before the Special Judge (SPE/CBI)-1, Ernakulam. 4. The learned Special Judge took cognizance and issued process to the appellant. Responding to the process issued, the appellant, who was subsequently released on bail, entered appearance. After hearing the appellant and the prosecution, charge was framed for offence under Section 7 and 13 (2) read with Section 13(1)(d) of the Act. 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 14 were examined. Exts. P1 to P25 and M.Os. 1 to 4 series were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(i)(b) of the CRL. A. 785/2002 6 Code of Criminal Procedure. The appellant denied the incriminating evidence and further stated that while he was in financial difficulties he had availed a loan from PWs.2,3,4 and one Prasad for which at the instance of PW1 stamped pronotes were issued to PWs 2 to 4 and Prasad and it was for that purpose, he reached at Guruvayur and that PW.1 gave the complaint only because of the threat of PW.11 who had some vengeance. It was also stated that seeing the appellant, PW.1 handed over one pouch and requested him to keep it until PW.1 return from the temple and that no money was handed over to him. On the side of the appellant, DWs 1 and 2 were examined and Exts.D1 to D7 were marked. The Special Judge, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as stated above assailing which this appeal was preferred. 5. I have heard Sri. S. Rajeev, learned counsel appearing for the appellant and Sri. P. Chandrasekharan Pillai, the learned standing counsel for the CBI. The fact that the appellant was working as a Senior Assistant in the National Textile Corporation was proved by the testimony of PW 1. PW.13, the Principal of the Staff Training College, attached to the National Textile Corporation, Coimbatore corroborates. The appellant was working CRL. A. 785/2002 7 under PW13. It is PW.13 who had issued Ext.P21 order according sanction to prosecute the appellant. PW.13 had also deposed that he was the authority competent to remove the appellant from service. The fact that the appellant was working as a Senior Assistant in National Textile Corporation is not at all challenged in cross-examination. Having carefully gone through the evidence of PWs 1 and PW.13, I find that there is reliable evidence regarding the fact that the appellant was working as a Senior Assistant in the National Textile Corporation and in that capacity, he was a public servant as defined under Section 2(c) of the Act. Though it was suggested that PW.13 had accorded sanction to prosecute the appellant without applying his mind, I find little reason to disbelieve the evidence of PW.13 or to reject Ext.P21. Hence I find that the prosecution was launched with due sanction to prosecute the appellant. 6. The question that remains is whether the appellant had received any illegal gratification as a motive or reward for doing or forbearing to do any official act and/or whether he had committed any misconduct as defined under Section 13(1) of the PC Act. PW.1 would depose that he was acquainted with the appellant while he was an apprentice trainee in Travancore CRL. A. 785/2002 8 Titanium and that the appellant had introduced himself as an Assistant in the National Textile Corporation and told him that he could make arrangements for getting appointment to the post of Deputy Manager, in the National Textile Corporation, for graduates with MBA by exercising his influence and that the appellant demanded Rs. 2,00,000/- for arranging such employment. Believing the words of the appellant, PW.1 thought of securing an employment for his brother PW.2, who is a Master's degree holder in Business Administration. The appellant also offered that he could manage appointment to other persons also. Accordingly, the matter was informed to PW.3, 4 and one Prasad, who are friends of PW.2. All of them initially agreed for securing the job by paying the amount demanded by the appellant. On 5.9.2000 the appellant reached at Woodlands Hotel, Ernakulam, of which PW.8 was a partner and lodged in Room No. 201 of the Hotel. PW.1 along with PWs 2 to 4 and Prasad went to the Hotel and met the appellant. The appellant reiterated his influence and demand. PWs 2, 4 and Prasad paid Rs. 50,000/- each, for which, on demand, the appellant issued Exts. P1 to P3 receipts on stamp papers. PW.3 had not brought the amount at that time. Therefore, the appellant went along with PW.3 in a taxi to the house of PW3 and obtained Rs. 50,000/- for which also a receipt CRL. A. 785/2002 9 was alleged to have been issued; but not produced. Thereafter, the appellant used to ring to PW.1 demanding payment of further amount stating that arrangements for appointment was on move. Though PWs 1 to 4 and Prasad initially thought of securing job by making payment, later, after an afterthought, decided not to pursue the same and to complain. Accordingly, PW.1 intimated the Superintendent of Police, CBI, regarding the demand and gave Ext.P4 First Information statement on the basis of which PW.11 registered a case as Crime No. RC 15A/2000/SPE/KER. for which Ext.P4(a) First Information Report was prepared. Without knowing these changes and the complaint by PW.1 to the police, the appellant repeated his demand and asked to make payment on 6.10.2000 at Coimbatore. Then PW.1 informed that he had some inconvenience to go over to Coimbatore as he had to go to Guruvayur. The appellant agreed to reach at Guruvayur for receiving the balance amount. In the meanwhile, PW.11 made arrangements to trap the appellant. As asked by PW11, PW1 produced MO3 series currency notes. PW11 summoned PW5 and 10. MO3 series were smeared with phenolphthalein powder. Phenolphthalein test was demonstrated and noting the numbers of the currency notes, Ext.P5 mahazar was prepared. CRL. A. 785/2002 10 PW.11 along with PW.1 and the police party and two independent witnesses proceeded to Guruvayur on 6.10.2000 and lodged at Thulasidalam Hotel. On the way, PW.1 called the appellant and ascertained whether he would be coming over to Guruvayur. He responded positively. After reaching Guruvayur, PW.1 again rang to the appellant and assured that the appellant would be coming over to Guruvayur. The appellant also reached Guruvayur and at about 6 A.M. On the next day the appellant rang PW.1 and stated that he had been waiting in front of Aryabhavan Lodge. Though PW.1 asked the appellant to go over to Thulasidalam Lodge, the appellant stated that he had difficulties to go over there and he would be waiting in front of Aryabhavan Lodge. On getting information, PW.11 and part proceeded. The independent witnesses and the party took positions at different spots near the lodge. PW1 was informed to proceed to the lodge. PW.1 accordingly proceeded to Aryabhavan Lodge. Appellant was waiting in front of the lodge. Seeing PW.1 the appellant demanded money. PW.1 took over the cash and handed over the same to the appellant. The appellant after receiving the cash walked ahead talking with PW1. PW.11 rushed to the appellant and disclosed his identity. As asked by PW.11, the appellant handed over the currency notes which were marked as M.O.3 series to CRL. A. 785/2002 11 PW.5, the independent witness. The hands of the appellant were subjected to phenolphthalein test. The result of the test was positive. The appellant was arrested. The serial numbers of the currency notes were verified with reference to Ext. P5. Thereupon Ext.P6 mahazar was prepared. 7. The evidence of PWs 2, 3 and 4 would corroborate with the evidence of PW.1 regarding the acceptance of Rs. 50,000/- each by the appellant from PWs 2,3,4 and Prasad. They would also depose that Exts.P1 to P3 are the receipts issued by the appellant to PW.2, PW 4 and Prasad on receipt of Rs.50,000/-. Their evidence on that aspect could not be shaken in cross examination. 8. PW.5 had deposed that he was working as an Officer in Canara Bank and that in October, 2000 he was working as such at the Regional Office of the Canara Bank, Shanmugham Road, Ernakulam and that as requested by his superior officer he had been to the Office of PW.11 who informed the trap after reading over the complaint of PW1. . PW.11 had also demonstrated the procedure of trap, for which Ext.P5 mahazar was prepared. MO3 series were smeared with Phenolphthalein and gave back to PW1. Then they proceeded to Guruvayur along with PW.11 and party. He would further depose that he had witnessed the demand and acceptance CRL. A. 785/2002 12 of money by the appellant from PW.1 and that the appellant was subjected to phenolphthalein test which turned positive and that the appellant was arrested. PW5 also would depose that MO3 series were handed over to him by the appellant on command by PW11 and that the identity MO3 was verified with reference to Ext.P5. PW5 had also proved Ext.P5 and P6 in which PW5 is also an attestor. 9. PW.10 is the Assistant Divisional Manager, employed in the Oriental Insurance Company. He would corroborate with the evidence of PW.5. PW.11 had given descriptive evidence regarding the trap and the arrest of the appellant as well as the recovery of M.O.3 series currencies and the phenolphthalein test. He had proved Ext.P5 and P6 mahazars. M.O.1 is the sodium carbonate solution, which was used for testing the right hand of the appellant. M.O.2 is the sodium carbonate solution used for testing the left hand of the appellant. The evidence of PW11, which corroborates with the evidence of PWs 1, 5 and 10 regarding the trap, inspires confidence. 10. PW.6 was examined by the prosecution to establish that PW.11 and party had stayed at Thulasidalam Lodge. PW.7, a booth operator at Poonkunnam had deposed that PW.1 had telephoned the appellant from his booth on the way to Guruvayur. PW.8 was examined to prove that the CRL. A. 785/2002 13 appellant had lodged at Woodlands Hotel. PW.9 was examined to prove that the appellant had parked a motor bike bearing Reg. No. TN 37 A 6039 at the parking ground where PW.9 was a watchman and that thereafter the appellant had proceeded to Guruvayur. PW.12 is an Assistant Engineer who prepared Ext.P12 site plan. PW.14 was examined to prove the process of investigation and the filing of the charge sheet. 11. On a careful reading of the evidence of PWs 1 to 4, I find that the prosecution had succeeded to establish that the appellant stated to PWs 1 to 4 and one Prasad that he could arrange employment to the post of Deputy Manager in the National Textiles Corporation to persons who are having degree in Business Management and that the appellant offered to arrange a job to PW.2, 3,4 and to one Prasad on payment of Rs. 2,00,000/- each and accordingly, PWs 2 to 4 and Prasad handed over Rs. 50,000/- each as 1st instalment on 5.9.2000 for which Exts. P1 to P3 receipts were issued to PW.2, Prasad and PW.4. 12. The case of the appellant is that he was suspended from service and was badly in need of money and that PW.1 was acquainted with the appellant while PW.1 was studying at Coimbatore and that PW1 offered to arrange loans and it was thus the appellant availed loans and not on any CRL. A. 785/2002 14 promise to arrange any job to PW 2, 3 or to Prasad. That defence would show that the appellant practically admitted acceptance of cash from PW2 to 4 and Prasad and the issuance of the receipts. There is nothing on record to show that it was a loan transaction. The defence plea is not at all supported by any evidence. It was submitted by the learned counsel for the appellant that at Guruvayur, PW.1 offered to pay the amount as a loan so as to enable the appellant to pay back to PW3 who insisted to return the loan earlier availed. PW3 was the brother of Sasidharan, the then Circle Inspector of Police and the appellant was forced to pay back the amount. It is on the offer of PW.1 to arrange money to pay back to PW3, the appellant had been to Guruvayur. That explanation indicates that the appellant had been to Guruvayur to take money from PW1. Then for what purpose alone remains to be established. Prosecution alleges that it was as bribe. Appellant alleges that it was as loan. PW1 supports prosecution. Defence plea is not supported by any evidence. In the above circumstance, I reject the defence plea of loan. It is the further case of the appellant that though PW.1 had offered to arrange loan, no money was handed over, but a pouch was handed over to the appellant stating that he would come back after visiting the temple. The learned counsel for the appellant heavily attacked the failure CRL. A. 785/2002 15 of the prosecution to produce the pouch. Going by the evidence of PWs 1, 5,10 and 11, it is revealed that the pouch was belonging to PW.1 and it was not smeared with phenolphthalein powder and that PW.1 had not at all handed over the pouch to the appellant. On the other hand, PW.1 took over M.O.3 currencies from the pouch and handed over to the appellant. It is not in dispute that the pouch was not the subject matter of the prosecution. Though PWs 1,5,10 and 11 were subjected to very lengthy and searching cross examination, no material was disclosed to disbelieve those witnesses. This evidence instil confidence. The learned counsel for the appellant heavily assailed the failure of the prosecution for not procuring local witnesses. It has to be remembered that the place of occurrence was in front of the Guruvayur Temple. There may be independent witnesses available. But, many of them would be pilgrims and thereby chance witnesses. Many may not care to heed. However, PW11 did not dare to take chance. Instead, PW11 arranged PWs 5 and 10, who are senior officials in the public sector undertakings. PWs 5 and 10, as I have stated earlier, were subjected to lengthy and searching cross examination. There was no suggestion to those witnesses that they had got any axe to grind against the appellant or that they were otherwise loyal to the prosecution to trap the appellant. They are CRL. A. 785/2002 16 independent and credible witnesses. In the above circumstances, I find that the failure of the prosecution to seize the pouch or to get a local witness is not much fatal and there is no good reason to disbelieve the evidence of PWs 5 and 10, which corroborated with the evidence of PWs 1 and 11 in all material particulars. Their evidence is further corroborated by Exts.P5 and P6. It is pertinent to note that the very case of the appellant is that he had demanded money from PW.1 and it was for repayment of the loan to PW3, who is the defacto complainant in C.C. 742/2000. It was also argued by the learned counsel for the appellant that PW.3 is the brother of the Circle Inspector of Police and that the appellant having feared severe consequences, agreed to pay back the amount and to settle C.C. 742/2000. Such being the defence version, the non seizure of the pouch is not at all significant. It is also crucial to note that in the event somebody asked for advancement of loan and agreeing to pay it, in the usual course, it would not be paid along with pouch. So, in that way also, the non-seizure of the pouch is not very significant. On the other hand the demand for money from PW1 is practically admitted. 13. On a careful analysis of the evidence of PWs 1, 5, 10 and 11 and going by the judgment impugned in the light of the defence version, I find CRL. A. 785/2002 17 that the learned Special Judge had correctly analyzed the evidence and believed the prosecution case regarding the demand of money by the appellant and handing over M.O.3 series amounting to Rs. 10,000/-. The defence plea is not at all believable or probable. The Special Judge had analyzed the evidence in detail and had given good reasons to arrive at a conclusion in favour of the prosecution. The identity of M.O.3 series entrusted back to PW.1 for the purpose of trap is specifically noted in Ext.P5. The evidence of PW.1, 5, 10 and 11 regarding the identity of the currency notes were scrutinized with reference to Ext.P5 after the trap. The identity of the currency notes is also specifically mentioned in Ext.P6. Ext.P6 mahazar also corroborates with the evidence of PWs 1, 5,10 and 11. So I conclude that the prosecution has succeeded to establish that the appellant had received Rs. 10,000/- on 7.10.2000 as alleged by the prosecution in addition to Rs.2,00,000/- that the appellant had received on 5.9.2000. 14. The question then comes is as to whether such receipt of the amount would amount to acceptance of illegal gratification coming under Section 7 or it would amount to criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act or both. CRL. A. 785/2002 18