Kerala High Court
J. Vijayakumar vs State Of Kerala on 20 February, 2018
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939
CRL.A.No. 1706 of 2007
CC 51/2003 of ENQ.COMMR. & SPL.JUDGE,THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
J. VIJAYAKUMAR,
FORMERLY SALES TAX INSPECTOR, SALES TAX CHECK POST, TILE
FACTORY JUNCTION, AMARAVILA,NEYYATTINKARA.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
SRI.SUJESH MENON V.B.
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
BY SHRI E C BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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Crl. Appeal No.1706 of 2007
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Dated this the 20th February 2018
JUDGMENT
The appellant is the accused in C.C.No.51 of 2003 on the files of the court below. The prosecution was for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (for short 'the P.C. Act').
2. The prosecution allegation is that the appellant, while working as Sales Tax Inspector at Amaravila Tile Factory Junction Sales Tax Check post, demanded and accepted Rs.150/- from PW1 on 11.10.2001 at about 1 p.m., as gratification other than legal remuneration, for Crl.A.1706/2007 :2: allowing the vehicle of PW1 with taxable goods to pass through that check post without the payment of tax.
3. On the basis of Ext.P1 statement given by PW1, PW5 registered Ext.P2 FIR. Thereafter, a successful trap was arranged and the appellant was arrested. The tainted MO1 notes were recovered from the table of the appellant. PW2 and PW3 witnessed the transaction, which had taken place between PW1 and the appellant. After completing the investigation, PW5 filed the final report before the court below.
4. In the trial, PW1 to PW11 were examined and Exts.P1 to P27(b) were marked for the prosecution, besides identifying MO1 to MO5. On the side of the defence, DW1 to DW3 were examined and Exts.D1 to D7(a) were Crl.A.1706/2007 :3: marked. Exts.X1 to Ext.X14 were marked as court exhibits.
5. After evaluating the evidence, the court below found the appellant guilty under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. The court below sentenced the appellant to rigorous imprisonment for three years under Section 7 of the P.C. Act and rigorous imprisonment for three years and a fine of Rs.10,000/- with a default clause for rigorous imprisonment for six months under Section 13(1)(d) read with Section 13(2) of the P.C.Act.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor.
7. PW1 is the defacto complainant in this case. On Crl.A.1706/2007 :4: the basis of Ext.P1 statement given by PW1 alleging that the appellant demanded an amount of Rs.150/- for permitting PW1 to take his mini lorry through the check post with taxable goods without paying the tax, PW5 registered the crime. PW1 did not fully support the prosecution case. PW1 stated that he had paid an amount of Rs.150/- to the appellant. However, the said amount was paid by him not as bribe. According to PW1, he was directed by Manoharan, the owner of the mini lorry bearing Reg.No.KL-01/U 2565 in which PW1 was the driver, to pay Rs.150/- as tax for the goods carried in the said vehicle. Accordingly, PW1 went to the room of the appellant and handed over MO1 notes to the appellant. The appellant counted MO1 notes and stated that the tax Crl.A.1706/2007 :5: amount was Rs.207/-. Then PW1 went to his lorry to take the balance amount to remit the tax. When he came back with the money, he found that PW5 and party entered into the office of the appellant.
8. PW2 and PW3 were witnesses arranged by PW5 to witness the trap. PW2 was working in the Legal Metrology Department and PW3 was a police constable during the relevant period. They witnessed the transaction whereby PW1 handed over MO1 notes to the appellant. However, PW1 and PW2 specifically stated that the appellant did not talk anything to PW1 before accepting MO1 notes. PW1 also did not state anything with regard to any demand for bribe made by the appellant to PW1. PW2 and PW3 fully Crl.A.1706/2007 :6: supported the prosecution case. Their evidence is that they witnessed the handing over of MO1 notes to the appellant by PW1. They also witnessed the arrest and seizure of the tainted MO1 notes. They also witnessed the further procedure in connection with the recovery of tainted MO1 notes.
9. The learned counsel for the appellant relied on the decisions of the Hon'ble Apex Court in Jayaraj B. v. State of Andhra Pradesh [2014 KHC 4199 : (2014) 13 SCC 55] and Satyanarayana Murthy P. v. District Inspector of Police and Another [2015 KHC 4615:AIR 2015 SC 3549] and argued that since there is no evidence to prove the demand, the conviction and sentence passed by the court Crl.A.1706/2007 :7: below cannot be sustained. Per contra, the learned Public Prosecutor has argued that in view of the presumption under Section 20 of the Prevention of Corruption Act, it has to be held that the conviction and sentence passed by the court below are justified.
10. The Apex court in Jayaraj (supra) held that if proof of demand and acceptance of illegal gratification is absent, no presumption under Section 20 of the P.C. Act can be drawn. The Apex Court in Satyanarayana Murthy (supra) held that the proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13 (1)(d) of the P.C.Act and in the absence thereof, the charge therefor, would fail. The Apex Court further Crl.A.1706/2007 :8: held in Sathyanarayana Murthy (supra) that the mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under Sections 7 and 13 (1)(d) of the P.C. Act.
11. In this case, the evidence of PW1 to PW3 would show that the appellant did not make any demand for illegal gratification. The evidence of PW2 and PW3 would further show that the appellant did not even talk to PW1 before accepting MO1. It is true that tainted MO1 notes were recovered by PW5 from the table of the appellant. MO1 notes were admittedly found on the table of the Crl.A.1706/2007 :9: appellant when PW5 and party entered into his room. The evidence of PW1 to PW3 and PW5 would clearly prove the above aspect.
12. The defence taken by the appellant is that MO1 notes were given to him by PW1 towards payment of tax in respect of the taxable goods carried in the vehicle driven by PW1 and since the amount given by PW1 was less than the amount of tax, the appellant did not accept the same. The appellant placed MO1 notes on the table. The amount of tax was Rs.207/-. Then, PW1 went out from his room to bring the balance amount. The evidence of PW1 is also on the same line. It is to be noted that the appellant had given a petition against PW1 as early as on 27-09-2001 as Crl.A.1706/2007 : 10 : is evident from Ext. D7(a). The said petition was closed by the Sub Inspector of Police after summoning PW1 to the police station. The Sub Inspector had also strongly warned PW1 not to repeat the acts mentioned in the petition. The above petition was made by the appellant in connection with the acts committed by PW1 at the check post. Ext. D5 is the General Diary entry of Parassala Police station, which would show that it was reported from Amaravila Tile Factory Checkpost that Lorry bearing No. KL-01-U-2565 was parked in the checkpost and the driver of the lorry was creating commotion at the checkpost. The lorry driven by PW1 on the date of incident in this case was the lorry bearing No. KL-01-U-2565. Ext. D5 Entry was made on 21-09-2001 at 10.45 a.m. Ext. D7(a) was on 27-09-2001. Crl.A.1706/2007 : 11 : The incident in this case was on 11-10-2001. Therefore, Exts. D7 (a) and D5 are definitely relevant for appreciating the evidence of PW1.
13. Having gone through the entire evidence of PW1, in the light of Exts. D7 (a) and D5, it appears that PW1 was having animosity towards the appellant in connection with an incident which occurred prior to the incident in this case. Therefore, there was every likelihood that the intention of PW1 was to somehow trap PW1 fraudulently. The above view is fortified by the evidence of PW1 to PW3 and PW5 that MO1 notes were found on the table of the appellant. If the appellant had accepted MO1 notes as bribe, he would not have normally placed the same Crl.A.1706/2007 : 12 : exposed on the table. The above facts coupled with the evidence of PW1 that PW1 had given MO1 notes to the appellant towards payment of tax and since the amount was not sufficient to pay the tax, PW1 came out to take the balance amount from the vehicle and at that time, PW5 and party entered into the office room of the appellant, would lead to the inference that the contention of the appellant is probable. Then the question is as to how the fingers of the appellant were found to be stained with phenolphthalein. The evidence of PW2, PW3 and PW5 would show that when the right hand fingers of the appellant were dipped in MO4 solution, the said solution turned pink. The evidence of PW1 would make it clear that after the receipt of MO1, the appellant counted the Crl.A.1706/2007 : 13 : notes. Admittedly, phenolphthalein powder was sprinkled over MO1 notes. Therefore, when he counted the notes, naturally his fingers happened to be stained with phenolphthalein powder. Therefore, merely because the right hand fingers of the appellant happened to be stained with phenolphthalein powder, it cannot be said that the appellant received MO1 notes as illegal gratification.
14. It is true that PW7 was examined by the prosecution to prove the demand made by the appellant on an earlier occasion to him. PW7 supported the prosecution case. However, Exts. D3 and D6 would show that the appellant had lodged a complaint before the police against PW7 alleging offences under Sections 353 and Crl.A.1706/2007 : 14 : 294 (b) IPC and Section 3 of the PDPP Act. During the pendency of this appeal, the trial in that case was concluded and PW7 was convicted and sentenced in the said case. The appellant produced the judgment of the trial court in the said case as additional document, which has been marked as Ext. D8 by this Court as per order in Crl. M.A. No. 1017 of 2018. Ext. D8 judgment in C.C. No. 654/2001 would show that Ajithkumar, who is PW7 in this case, was convicted and sentenced by the trial court for the offence under Section 3(1) of PDPP Act. Ext. D8 would further show that the date of incident therein was 10-09- 2001, which was one month prior to the incident in the present case, viz., 11.10.2001.
Crl.A.1706/2007: 15 :
15. On an evaluation of the evidence of PW7 in the light of Ext. D8, I am of the view that the evidence of PW7 that the appellant demanded bribe from him on 12-09- 2001 appears to be suspicious. Admittedly, PW7 did not inform about the above said demand allegedly by the appellant to any authority prior to the incident in this case. If the appellant had demanded bribe from PW7 on 12-9- 2001 as stated by PW7, he would have naturally informed the matter to the police, particularly when he was aware of the fact that Ext. D3 was pending against him at that time. In view of the above reasons, the evidence of PW7 does not inspire confidence. Eventhough PW11 was examined by the prosecution to prove another demand allegedly made by the appellant prior to the incident in this case, Crl.A.1706/2007 : 16 : PW11 did not support the prosecution case.
16. Now the only evidence available before the court is the evidence of PW1 to PW3 regarding the handing over of MO1 notes to the appellant by PW1. The evidence of PW1 coupled with Exts.D5 and D7(a) would probabilise the contention of the appellant that MO1 notes were given to the appellant by PW1 under the guise of paying the tax in respect of the goods carried in the lorry bearing Registration No. KL-01-U-2565 driven by PW1. The evidence of PW1 to PW3 and PW5 that the notes were found on the table of the appellant, would also probabilise the contention of the appellant. Crl.A.1706/2007 : 17 :
17. It is true that there was recovery of MO1 notes from the table of the appellant. However, it is settled law that mere recovery of the tainted amount is not sine qua non for holding a person guilty under Section 7 or Section 13 of the P.C. Act. Evidence has to be adduced by the prosecution to prove that bribe was demanded or money was accepted voluntarily as bribe. The demand and acceptance of the amount as illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act. The prosecution is duty bound to establish that there was illegal demand of bribe and acceptance thereof. Absence of proof regarding the demand made by the appellant coupled with the other attending Crl.A.1706/2007 : 18 : circumstances mentioned above would raise serious doubt with regard to the prosecution case.
18. Having gone through the relevant inputs as discussed above, this court is satisfied that the prosecution failed to prove the demand of bribe money and also acceptance of money as illegal gratification by the appellant from PW1 and consequently, it has to be held that the prosecution failed to establish that the appellant committed the offence under Section 7 and Section 13 (1)
(d) read with Section 13(2) of the P.C. Act. Therefore, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. Crl.A.1706/2007 : 19 :
In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 7 and Section 13(1)(d) read with Section 13(2) of the P.C. Act and the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged.
Needless to state that if the appellant had deposited any amount before the court below, pursuant to the direction of this Court, the appellant is entitled to get reimbursement of the said amount from the court below.
Sd/ B.SUDHEENDRA KUMAR, JUDGE dl/ani/20.2.2017 // True copy // PA to Judge