Kerala High Court
P.Kunhikrishnan vs State Of Kerala on 1 April, 2019
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941
CRL.A.No. 205 of 2010
AGAINST THE ORDER/JUDGMENT IN CC 51/2003 of ENQUIRY COMR.&
SPECIAL JUDGE,KZD. DATED 24-12-2009
APPELLANT/ACCUSED:
P.KUNHIKRISHNAN
NELLIYADUKKAM HOUSE, PANAYIL VILLAGE,
BAKEL, KASARAGOD DISTRICT.
BY ADV. SRI.S.RAJEEV
RESPONDENT/STATE:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM
(VC NO.2/2002 OF VACB, KASARAGOD).
OTHER PRESENT:
SRI SANTHOSH PETER-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
01.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.A. No. 205 of 2010
-2-
JUDGMENT
The appellant herein was the 2 nd Grade Overseer of the Nileswar Grama Panchayat in June 2002. The improvement work on a road within the Panchayat, by name "Mundemmad road", sanctioned by the Panchayat under the Peoples' Campaign Programme for the year 2001-2002 was entrusted to one M.V.Bharathan as the Convener of the committee formed for the purpose with the participation of the people, and the estimated amount was Rs.50,000/-. The work was carried out by the said M.V.Bharathan, it was check-measured by the Engineers and also the Overseer, and finally, the said M.V.Bharathan submitted bill for payment. It was the duty of the 2nd Grade Overseer of the Panchayat to prepare memo of payment after the works being check-measured by him and the Engineers, and accordingly, the said M.V.Bharathan approached the accused, and requested him to prepare the memo of payment. He first met the Panchayat Secretary, and as Crl.A. No. 205 of 2010 -3- asked by the Secretary, Bharathan met the accused. The prosecution case is that for preparing memo of payment the accused demanded an amount of Rs.2,000/- from the said Bharathan on 25.06.2002, and on bargain the amount was reduced to Rs.1,500/-. Accordingly, Bharathan was required by the accused to meet him at his office on 27.06.2002 before noon for making such payment. As Bharathan was not inclined to make payment of bribe, he contacted the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau (VACB), Kasaragod. As instructed by the Dy. S.P., Bharathan made a complaint on 27.06.2002 itself. On the said complaint, the Dy. S.P., VACB registered a crime, an amount of Rs.1,500/- (three currency notes of Rs.500/-) was received as per an entrustment mahazar, and the required phenolphthalein test was demonstrated to the complainant and others, for trapping the accused. At about 12.45 p.m., the said M.V.Bhararathan, followed by the vigilance team reached the Nileswar Grama Panchayat Crl.A. No. 205 of 2010 -4- office, and Bharathan met the accused at his office. When the accused repeated his demand, Bharathan made payment of the phenolphthalein tainted currency of Rs.1,500/- to the accused, and conveyed the pre-arranged signal to the vigilance team. On getting the signal conveyed by a member of the team, the Dy.S.P. reached the spot, and interrogated the accused. When the Dy.S.P. questioned the accused whether he had received bribe from Bharathan he denied, but the result of the phenolphthalein test conducted by the Dy.S.P. on the spot turned positive. When further questioned, the accused stated where he had kept the phenolphthalein tainted currency. As shown by him, it was taken from inside the files kept on the rack near the seat of the accused. The accused was arrested on the spot, and the phenolphthalein tainted currency was seized as per a mahazar. The Dy.S.P. himself conducted investigation, and he submitted final report in Court.
Crl.A. No. 205 of 2010-5-
2. On the allegation of acceptance of illegal gratification for discharging his official duty of preparing memo of payment, the accused faced trial before the Special Court (Vigilance), Kozhikode in C.C. No. 51 of 2003. He entered appearance before the trial court, and pleaded not guilty to the charge framed against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the PC Act"). The prosecution examined 12 witnesses, and proved Exts.P1 to P23 documents in the trial court. The MO1 to MO3 properties including the phenolphthalein tainted currency notes seized from the possession of the accused were also identified.
3. The accused denied the incriminating circumstances, when examined under section 313 Cr.P.C., and projected a defence that he was viciously trapped by the complainant at the instigation of the other employees and Panchayat authorities for the reason that he had, on many occasions, pointed out some irregularities and malfeasance Crl.A. No. 205 of 2010 -6- on the part of the other employees. The accused did not adduce any oral evidence, but Ext.D1 was marked on his side.
4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) each under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Aggrieved by the judgment of conviction dated 24.12.2009, the accused has come up in appeal.
5. Of the twelve witnesses examined in the trial court, the material witnesses to prove the factual aspect of demand and acceptance of illegal gratification are PW1, PW2 and PW12. Of them, PW1 is the complainant, PW2 is the public servant who witnessed the pre-trap and post-trap procedures including the seizure of phenolphthalein tainted currency from the possession of the accused, and PW12 is the Deputy Superintendent of Police, VACB who registered Crl.A. No. 205 of 2010 -7- the crime, arranged the trap, seized the phenolphthalein tainted currency from the possession of the accused, and also conducted investigation. PW3 to PW5 are the Panchayat authorities including the then Secretary and the then President, examined to prove the nature of the duties and functions of the accused as Overseer. PW3, the Panchayat Secretary has also given evidence regarding the arrest of the accused, and the seizure of phenolphthalein tainted currency from his possession by PW12. PW9 to PW11 are the Clerical staff of the Panchayat and the PWD office examined to prove some procedural aspects of the construction and maintenance of roads, and PW8 is the Assistant Executive Engineer examined to prove that he had check-measured the works done by PW1. PW7 is the Additional Director of Panchayat who issued the prosecution sanction under Section 19 of the PC Act while holding the full additional charge of the Director of Panchayat. He also proved the Ext.P16 sanction.
Crl.A. No. 205 of 2010-8-
6. Before going to the factual aspects regarding the alleged acceptance of illegal gratification, and also the nature of the works and duties of the accused as Overseer, let me see whether the prosecution has proved the required sanction under Section 19 of the PC Act. PW7 has given evidence that the authority to appoint, and also to remove an Overseer at the relevant time was the Director of Panchayat, and as on 06.08.2003, he was Additional Director of Panchayat having full additional charge of the Director of Panchayat. He has proved the Ext.P16 prosecution sanction granted by him in his capacity as Director of Panchayat, and he has given evidence that it was granted by him on an independent application of his mind after perusing the entire case records. When cross-examined he stated that for about 11 months he had full additional charge of the Director of Panchayat, and he took charge from the then Director Sri.T.J.Mathew Elias. Of course, it is true that in the Ext.P16 sanction, it is not specifically written that it was issued by Crl.A. No. 205 of 2010 -9- PW7 as the additional Director having full additional charge of the Director. Once put in additional charge of the Director, he would be as good as Director, and he can issue orders and directions in his capacity as Director. The defence has no contention that the Director of Panchayat was not the right and competent authority to remove an Overseer from service. The trend of cross-examination was only regarding the additional charge of the Director of Panchayat. On this aspect, I find no reason to disbelieve the evidence of PW7. I find that the Ext.P16 sanction was granted by PW7 in his capacity as Director of Panchayat, while holding the full additional charge of Director. The specific evidence given by PW7 that he issued the sanction on an independent application of mind, and after perusing the entire case records, stands not challenged in cross-examination. I find that there is a proper prosecution sanction in this case under Section 19 of the PC Act, and the sanction stands properly proved by the person who granted the sanction. Crl.A. No. 205 of 2010 -10-
7. Now let me come to the factual aspects.
Before going to the issue of demand and acceptance of bribe let me see what is the evidence regarding the duties and functions of the accused as Overseer. The prosecution has examined the then Panchayat Secretary, the then Panchayat President, the then Ward member, the UD Clerk of the Panchayat, and even a resident of the Panchayat to prove the nature of the works of Overseer. The prosecution case is that for preparing memo of payment for the works undertaken by PW1, the accused, as Overseer, demanded bribe, and he also accepted it. That the said work of maintenance of Mundemmad road was entrusted to PW1 is well proved by PW3, the Panchayat Secretary, and PW4, the Panchayat President. The Panchayat Secretary has explained the nature of the duties of the Overseer. The Panchayat President has given evidence on the basis of the minutes recorded in the Panchayat that the work in question was entrusted to PW1. The Secretary and the President have Crl.A. No. 205 of 2010 -11- also given evidence that the work was properly carried out by PW1, and he had submitted a bill for payment. The work was check-measured by the Engineer and also the Overseer for the purpose of sanctioning payment. PW3, the Secretary further stated that as the Overseer it was the duty of the accused to prepare memo of payment, once the work is check-measured by the Engineer. His evidence is that on 25.06.2002 the complainant had met him at his office, and the complainant was instructed by him to meet the Overseer for getting the memo of payment prepared. His bill, along with the M-Book was given to the complainant with direction to be presented before the Overseer. Accordingly, on 25.06.2002, PW1 met the Overseer. On 27.06.2002, a Vigilance team came there, and arrested the accused. After questioning the accused, some phenolphthalein tainted currency was also seized by the vigilance team. The result of the phenolphthalein test conducted by the Dy.S.P. turned positive, and he was a witness to the whole procedure. Crl.A. No. 205 of 2010 -12- Thus, besides explaining the nature of the duties and responsibilities of the accused as Overseer, the Panchayat Secretary has also given evidence regarding the trap procedure including the arrest of the accused, and the seizure of phenolphthalein tainted currency from his possession. It stands well proved by the evidence of PW3 to PW5 that as Overseer it was the duty of the accused to prepare memo of payment for the works undertaken by PW1, and without such memo of payment, the money could not have been disbursed to PW1. Now the question is whether the accused had demanded or accepted bribe for discharging his official duty.
8. The pre-trap and post-trap procedures are well proved by the evidence of PW1, PW2 and PW12. The post-trap procedure including the arrest of the accused, and also the seizure of phenolphthalein tainted currency is proved by the evidence of PW3 also.
9. Of course, it is true that mere seizure of Crl.A. No. 205 of 2010 -13- phenolphthalein tainted currency from the possession of a public servant will not suffice to prove acceptance of illegal gratification, punishable under Section 7 or Section 13(1)(d) (prior to the amendment) of the Prevention of Corruption Act, 2018. It is well settled that for such a prosecution, the essential elements will have to be proved by the prosecuting agency. Those essentials are demand and acceptance. Section 20 of the PC Act (prior to the amendment) contains a presumption that once it is proved in a prosecution under Section 7 or Section 11 or Clause (a) or Clause (b) of Sub Section (1) of Section 13 that a public servant had accepted for himself, or for any other person any gratification other than legal remuneration or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted it as a motive or reward such as is mentioned in Section 7. What is presumed under Section 20 of the PC Act is not the guilt of the accused. In this case, the prosecution would allege that the accused had accepted Crl.A. No. 205 of 2010 -14- Rs.1,500/- from PW1 as a reward for preparing memo of payment for the works done by PW1 for the Panchayath. If evidence proves such acceptance, or if the accused had accepted that amount for preparing memo of payment, it will have to be presumed that the accused received the amount as a reward for discharging his official duty. Now, let me see whether the essentials are proved in this case, before going into the factual aspects of demand and acceptance. In State of Punjab v. Madan Mohan Lal Verma (2013 KHC 4609) = (2013 Crl.L.J. 4050), the honourable Supreme Court held that mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable. What the Supreme Court held is that for a successful prosecution under Sections 7 and 13 (1)(d) of the PC Act, on a charge of acceptance of illegal gratification, the prosecution will have to prove that the public servant had demanded such illegal gratification, and he had also accepted such gratification. Just because some tainted Crl.A. No. 205 of 2010 -15- money was seized from his possession, he cannot be found guilty under Section 7 or Section 13(1)(d) of the PC Act. This is the settled position. As regards the essentials, the Honourable Supreme Court has consistently held in so many decisions that demand and acceptance will have to be proved by satisfactory evidence by the prosecution for a conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. In Sejappa V. v. State By Police Inspector Lokayukta, Chitradurga (2016 KHC 6295) = (2016 Crl.L.J. 2589) also, the honourable Supreme Court has held that mere recovery of tainted money will not suffice for a finding against a public servant under Sections 7 and 13(1)
(d) read with Section 13(2) of the PC Act, that the prosecution will have to prove demand and acceptance satisfactorily, and that, merely on the basis of recovery of tainted money, the court cannot even draw the presumption under Section 20 of the PC Act. That is the position settled in Sunkanna N. v. State of Andhra Pradesh (2015 KHC Crl.A. No. 205 of 2010 -16- 4696) = (2015 Crl.L.J. 4927) also. I feel it not necessary to cite so many decisions of the honourable Supreme Court settling the point, that for convicting a public servant under Section 7 or Section 13(1)(d) of the PC Act, the prosecution will have to prove the essentials like demand and acceptance. The latest decision is Dashrath Singh Chauhan v. Central Bureau of Investigation (2019 AIAR (Criminal) 19) where the honourable Supreme Court held that in a prosecution against a public servant under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act , the prosecution is under a legal obligation to prove the twin requirements of demand and acceptance of bribe, and that proving one alone will not be sufficient. In this case, the prosecution would allege that for discharging the official function of preparing memo of payment in his capacity as Overseer, the accused demanded an amount of Rs.1,500/- from PW1, and he also accepted it at his office. The demand was first made on 25.06.2002, and payment was made on Crl.A. No. 205 of 2010 -17- 27.06.2002. Though the initial demand was for Rs.2,000/-, the accused reduced it to Rs.1,500/- on bargain.
10. PW1 is the complainant, and PW2 is the public servant who witnessed the pre-trap and post-trap procedures. The complainant has given definite evidence that on 25.06.2002, when he met the accused at his office with the request for preparing memo of payment for the work done by him, the accused demanded Rs.2,000/-. When he expressed his inability, the accused reduced the claim to Rs.1,500/-, and insisted that it must be paid before noon on 27.06.2002. The evidence given by PW1 regarding demand stands not discredited. This witness has no reason to foist a false case against the accused. The Assistant Executive Engineer examined as PW8 has given evidence that he had check-measured the works done by PW1. It is quite clear that everything was ready, and the amount could have been disbursed to PW1 if the accused had prepared the memo of payment at the right time. The evidence of PW3, the Crl.A. No. 205 of 2010 -18- Panchayat Secretary gives an indication that the matter was kept pending by the accused, and in fact, on 25.06.2002 itself, the accused could have prepared the memo of payment. It appears that the accused delayed it for getting payment from the complainant, and he made demand and repeated the demand, but when the complainant expressed his inability, the accused reduced the claim to Rs.1,500/-.
11. The evidence given by PW1 and PW2 is that phenolphthalein test was demonstrated by the Dy.S.P. at his office, and after completing the pre-trap procedure, PW1 was directed by the Dy.S.P. to meet the accused at his office, and make payment on demand. Accordingly, PW2 accompanied PW1 to the Panchayat Office, and he waited outside. The Vigilance team led by PW12 also waited outside for getting the pre-arranged signal. The evidence of PW1 is that at about 12.45 p.m. on 27.06.2002, he met the accused at his office with request for preparing memo of payment, but then also, the accused asked him whether he had brought the Crl.A. No. 205 of 2010 -19- amount. When the accused repeated the demand, PW1 handed over the phenolphthalein tainted currency. The accused accepted it in his hands, and put it inside the files on the rack near his seat. Immediately he conveyed the pre-arranged signal, and on getting the signal, the Vigilance team led by PW12 reached there. The accused was interrogated, phenolphthalein test was conducted, and the test turned positive. The accused first denied acceptance of bribe, but when questioned further, he pointed out the place where he had concealed the tainted currency. As pointed out by the accused, PW2 took it, and handed over to the Dy.S.P.. Phenolphthalein test on the currency also turned positive. The accused was arrested on the spot, and the phenolphthalein tainted currency was seized as per a mahazar. PW1 and PW2 proved the detection mahazar also. The fact of detection is proved by PW3, the Panchayat Secretary also. It appears that the accused does not have any dispute practically, regarding the post-trap procedure, Crl.A. No. 205 of 2010 -20- and the seizure of phenolphthalein tainted money. The defence projected by the accused is that he was viciously trapped by PW1 and others for the reason that he had, on many occasions, pointed out some illegalities and irregularities on the part of the others. There is absolutely nothing to probabilise such a defence. The accused has no explanation why he concealed the currency notes inside the files if he were really trapped viciously. The fact that he concealed it inside the files on the rack immediately after accepting it from PW1 will convincingly prove that it was accepted by him as bribe. It is here the presumption under Section 20 of the PC Act comes to application. Had it been a case of vicious trap, as the accused would contend, he would not have kept or concealed the tainted currency. Of course, it is true that PW2 had not in fact witnessed the acceptance of bribe. He had witnessed the pre-trap procedure, and he had accompanied the complainant also. To prove acceptance, there is only the evidence of the complainant. Crl.A. No. 205 of 2010 -21- The post-trap procedure, including seizure of tainted currency from the accused, will also support the case of PW1 regarding acceptance. I find no reason to disbelieve PW1, and his evidence stands not discredited. The Panchayat Secretary is definite that he had witnessed the arrest of the accused by PW12, and he had also witnessed the seizure of some tainted currency by PW12 from the possession of the accused. The Panchayat Secretary has also given evidence regarding the positive result of the phenolphthalein test conducted on the spot by PW12. Nothing more is required to prove acceptance. The presumption under Section 20 of the PC Act can be applied in this case. When the essentials are very well proved by blemishless evidence, the other formal evidence given by the officials like PW10 and PW11 need not be discussed. As regards the nature of the functions, and also the duties of the accused, the Panchayat Secretary and the Panchayat President have given convincing evidence, that it was the duty of the accused to prepare memo of Crl.A. No. 205 of 2010 -22- payment. The defence does not have any dispute regarding the official status of the accused as a public servant. His official status is well proved by PW3, who also proved the Ext.P6 attendance register which shows the marking of attendance by the accused as Overseer. The prosecution sanction also stands well proved in this case.
12. As discussed in the foregoing paragraphs, I find that the prosecution has adduced clear and satisfactory evidence proving the essentials. Of course, it is true that there is no other evidence to prove demand, but the evidence regarding acceptance given by PW1 is corroborated by the other circumstances including recovery of tainted money from the possession of the accused. A public servant would not publicly demand illegal gratification for the discharge of his official functions, and so, there will not be any independent evidence to prove demand. The accused demanded Rs.2,000/- on 25.06.2002 when PW1 met him with his request to prepare the memo of payment. Nobody Crl.A. No. 205 of 2010 -23- else had seen or heard this demand, and so, the court cannot expect any other evidence to prove demand. There is no reason to suspect or reject the evidence given by PW1 regarding demand, when acceptance is well proved by his evidence, and also the other circumstances including the seizure of tainted money from the possession of the accused. The accused does not have any explanation as to how, or in what circumstance he happened to receive Rs.1,500/- from the complainant. He had no reason to receive any amount from PW1 on 27.06.2002. When the accused does not have any such explanation as to why, or for what purpose, or in what circumstance he received Rs.1,500/- from PW1, and when the evidence very well proves that the phenolphthalein tainted money was seen concealed inside some files on a rack, the only finding possible is that the said money was accepted by the accused as bribe, or as a reward for discharging his official function of preparing memo of payment. There is nothing to show that Crl.A. No. 205 of 2010 -24- PW1 had any reason to make a false complaint against the accused, or to foist a false case against him. Though not stated in so many words, there is some indication in the evidence given by the Panchayat Secretary, the Panchayat President, and also the Executive Engineer that the official function of preparing memo of payment was somehow delayed by the accused unnecessarily.
13. On an appreciation of the evidence, I find that the prosecution case stands well proved. The twin requirements of demand and acceptance are well proved by the evidence of the material witnesses. I find that the accused was rightly found guilty and convicted by the trial court under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
14. Now the question of sentence. For a silly thing, or for just Rs.1,500/-, the accused has spoiled his career. The sentence imposed by the court below for the two offences is rigorous imprisonment for two years each, Crl.A. No. 205 of 2010 -25- and the fine sentence is only Rs.5,000/- each. As regards fine sentence, there is no scope for interference in appeal. But the default sentence can be slightly reduced. As on the date of detection in this case, the minimum sentence prescribed for the offence under Section 7 of the PC Act was imprisonment for six months, and the minimum sentence for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act was imprisonment for one year. Now the minimum sentence stands enhanced by the amendment of 2014. On a consideration of the various aspects, I find that the minimum sentence will be the adequate sentence in this case.
In the result, the conviction against the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act in C.C. No. 51 of 2003 of the court below is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court under Section 7 of the PC Act will stand modified and reduced to simple Crl.A. No. 205 of 2010 -26- imprisonment for six months, and the substantive sentence under Section 13(1)(d) read with Section 13(2) of the PC Act will stand modified and reduced to simple imprisonment for one year. The two substantive sentences will run concurrently, and the accused will also get the benefit of set off, if any. The fine sentence imposed by the court below under the two Sections is maintained, but the default sentence will stand modified and reduced to simple imprisonment for one month each. The appellant will surrender before the trial court within four weeks from this date to serve out the modified sentence, and to make payment of the fine amount voluntarily, on failure of which steps shall be taken by the trial court to enforce the modified sentence, and realise the amount of fine, or enforce the default sentence.
Sd/-
P.UBAID
rkj/ds 28.02.2019 JUDGE