Kerala High Court
K.Muhammed vs State Of Kerala on 26 August, 2011
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1095 of 2001()
1. K.MUHAMMED
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :26/08/2011
O R D E R
N.K.BALAKRISHNAN, J.
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Crl.A.No.1095 of 2001
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Dated this the 26th day of August 2011
J U D G M E N T
The accused who was convicted by Enquiry Commissioner and Special Judge, Kozhikode for offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 is the appellant. He was sentenced to undergo Rigorous Imprisonment for two years each and to pay fine of Rs.10,000/- (Rupees Ten Thousand only) each with a default sentence of R.I. for one year each. This appeal is directed against the said conviction and sentence.
2. The appellant was the Assistant Executive Engineer, KSEB, Major Electrical Section, Beypore, Kozhikode. The case of the prosecution is : PW1 was the owner of a workshop where wooden reapers were manufactured. On 15.7.1997, the accused and his officials Crl.A.No.1095 of 2001 -: 2 :- conducted inspection of that workshop. They found illegal drawing of electricity from the nearby house of PW16. The mahazar, Ext.A27(a) was prepared for that purpose. Subsequently, Ext.P27(b) notice was sent to PW1 informing him that a sum of Rs.23,760/- would be imposed as penalty. When PW1 approached the accused on 6.10.1997, he demanded a sum of Rs.5,000/- as bribe in order to reduce the fine/penalty to Rs.4,000/-. Though reluctantly, he agreed to pay the amount demanded in five instalments. Thereafter, he went to the office of the Dy.S.P., Vigilance and Anti Corruption Bureau and informed the Dy.S.P. On 8.10.1997. The complaint orally given by him to the Dy.S.P. was reduced to writing and based on that complaint, F.I.R. was registered. As directed by the Dy.S.P. PWs.3 and 4, Tahsildars were brought to the office of the Dy.S.P. to lay the trap. MO1 series six currency notes (5 currency notes of the denomination of Rs.100/- and another currency note of the denomination of Rs.500/-) were given by PW1 to the Crl.A.No.1095 of 2001 -: 3 :- Dy.S.P. Those currency notes were treated/smeared with phenolphthalein powder. Thereafter, phenolphthalein test was demonstrated by PW20 (Dy.S.P.) to PWs.3 and 4 and also to the complainant (PW1). MO2 is the bottle which contained colourless lime water which turned pink while the test was demonstrated. PW2 the companion of PW1 was also present. Instructions were given by PW20 to PWs.1, 2, 3 and 4 as to what should be done. They went to the office at about Noon. The accused was not in the office at that time and he reached the office only at 2.45 PM. Then PW1 got into the office room of the accused. As demanded, PW1 paid Rs.1,000/- (MO1 currency notes) to the accused, who received it and put it in the drawer of his office table. PW1, then showed the signal indicating acceptance of bribe money by the accused. The signal was relayed to PW20 and also to PWs.3 and 4. They entered the office room of the accused while the accused was engaged in conversation with PW1. PW20 introduced himself as Dy.S.P., Vigilance Crl.A.No.1095 of 2001 -: 4 :- and Anti Corruption Bureau, Kozhikode. He also introduced PW3 and PW4 the Tahsildars. The accused was then seen vigorously rubbing his fingers on the table evidently to erase the phenolphthalein traces in his hands/fingers. He was asked not to rub his fingers. Since he continued to do, he had to be physically prevented from further rubbing on the table by holding his arms. When the accused was asked as to where the currency notes were put, the accused showed signal by his eyes/by body language indicating that the currency notes were in the drawer of his office table. When the drawer was opened, the currency notes were found in it. Thereafter, the accused was asked to dip his fingers in the lime water and the same turned to pink in colour. It was separately closed, packed, sealed and labelled then and there in the presence of witnesses upon which the witnesses put their signatures. The edges of MO1 currency notes were also dipped in lime water which also showed positive result, namely, the colourless liquid Crl.A.No.1095 of 2001 -: 5 :- turned pink. The dipped portion of the currency notes also showed pink colour. That lime water which turned pink in colour, taken in a bottle was also closed, packed, sealed and labelled in the presence of the witnesses. A detailed mahazar was prepared by PW20 narrating what transpired and also describing therein the seizure of all the material objects mentioned above. The accused was arrested and produced before the court. The investigation was thereafter conducted by PW21 and PW19. After obtaining sanction, the charge sheet was laid by PW18, the successor in office of PW20 alleging offences under Sections 7 and 13(1)(d) read with Section 13(2) of P.C.Act, 1988.
3. P.W.1 to 21 were examined and Exts.P1 to P41 were marked. M.O.1 to M.O.6(a) were marked. No witness was examined on the side of the defence. The accused made a total denial and contended that somebody had cheated him and that is innocent in the matter.
4. The learned Special Judge after considering the Crl.A.No.1095 of 2001 -: 6 :- entire evidence found the accused guilty, convicted and sentenced as mentioned above.
5. Heard Mr.B.Raman Pillai, learned counsel for the appellant and Mr.S.U.Nazar, learned Public Prosecutor.
6. The following points arise for consideration:
(i)Was there a valid sanction for prosecuting the accused?
(ii)Whether the accused had demanded Rs.5,000/-
from P.W.1 as a reward of gratification for reducing the penalty for drawing unauthorised electric connection to his workshop and whether the accused accepted Rs.1000/- from P.W.1 on 4.8.1997 at his office as part of the amount demanded by him as bribe?
(iii)Whether pursuant to the demand mentioned earlier the accused obtained from P.W.1 Rs.1000/- at about 3.45 PM on 8.10.1997 at his office for reducing the penalty as stated above? Crl.A.No.1095 of 2001 -: 7 :-
(iv)Whether the conviction and sentence passed against the appellant are liable to be set aside on any of the grounds putforward by him?
Point No.1
7. Ext.P30 is the sanction order issued by the then Chief Engineer who was examined as P.W.12 who was competent to issue the sanction order. The accused was then working as Assistant Executive Engineer of Electrical Major Section, Beypore. These facts are not disputed by the accused. The competency of P.W.12 to issue Ext.P30 order was also not challenged. The court below has accepted that evidence and found that there was valid sanction as required under Section 19 of the P.C.Act, 1988. The finding so entered by the court below is confirmed.
Point No.2
8. P.W.1, the complainant, P.W.2 his friend and P.W.16, the brother of P.W.1 did not support the prosecution. Similarly, P.W.17 who was alleged to have paid Crl.A.No.1095 of 2001 -: 8 :- Rs.1000/- on behalf of P.W.1 also did not support the prosecution. The learned counsel for the accused would submit that there is no evidence to show that the accused had made any demand at any point of time nor is there any acceptable evidence to show that the workshop which was conducted by P.W.1 was inspected by the accused. It is also contended by the defence that P.W.16, the elder brother of P.W.1 was the owner of the residential building 'Safreena Manzil' from which unauthorised electric connection was taken to the workshop which was run by P.W.1. As such according to the defence, there was no occasion for P.W.1 to complain regarding the same. In other words, according to the defence, the possibility of the accused demanding any amount as gratification from P.W.1 cannot be accepted at all. There is no merit in that contention. The workshop was admittedly run by P.W.1 who is the brother of P.W.16. Since it was P.W.1 who unauthorisedly drew electric connection to his workshop and since the order imposing penalty would Crl.A.No.1095 of 2001 -: 9 :- affect the motors being used in that workshop, certainly it was P.W.1 who was to avoid the action taken in the matter. Therefore, the contention that since the notice was issued to P.W.16, the owner of the building and so the case of the prosecution that bribe was demanded from P.W.1 is unsustainable, is devoid of any merit.
9. It was also contended that P.W.11 and P.W.13, the officials of the K.S.E.B. who actually conducted inspection have stated that the accused actually did not conduct inspection. But the learned Public Prosecutor would submit that every effort was made by the subordinates of the accused to say that the accused was not there but even from their evidence it could be seen that the accused was actually in the jeep when the inspection was conducted by P.Ws.11 and 13. That apart, as rightly pointed out by the learned Public Prosecutor, it is not disputed that based on Ext.P27(a), the report of inspection prepared by the officials, notice, Ext.P27(b), was issued by the accused. The Crl.A.No.1095 of 2001 -: 10 :- accused contends that ever so many papers would be placed before him by the staff of the Section and he being the head of that office used to sign and as such simply because Ext.P27(b) was signed by him, it cannot be held that he was present at the time of inspection or that the notice was issued to P.W.16 with evil design to demand bribe from P.W.1 or P.W.16. It is pertinent to note that the notice admittedly does not show Rs.23,760/- as the penalty payable. The case of the prosecution is that the accused demanded bribe and ultimately the agreement or understanding was to the effect that the accused should be paid Rs.5000/- in which case the penalty would be reduced to Rs.4000/-. Therefore, conveniently the penalty amount was not noted in Ext.P27(b). The contention that it was to be subsequently calculated by the section, after hearing the person concerned and that was why the amount was not mentioned does not inspire confidence in the mind of the court.
Crl.A.No.1095 of 2001 -: 11 :-
10. Ext. P1 is the First Information Statement of PW1 recorded by PW20, the Dy.S.P. PW1 did not support the prosecution and hence after seeking permission of the court, he was cross-examined by the learned Public Prosecutor. It was admitted by him that Ext.P1 was signed by him and that it was signed after the statement was read and found correct. It was also admitted by him that his workshop was inspected by the officials who came from KSEB and thereafter he stopped the working of the motor used in that workshop. It was further admitted that on 08/10/97, after Ext.P1 statement was given by him, Rs.1000/- was handed over by him to PW20 and that all those currency notes were smeared with phinolphthalein powder and thereafter those notes were entrusted to him. It was also admitted by him that before entrusting to him those notes (treated with phenolphthalein powder), certain tests were demonstrated. Further fact that it was along with PW2, he went to the office of PW20 and that after he Crl.A.No.1095 of 2001 -: 12 :- was entrusted with the currency notes as mentioned above he and PW2 went to the office of the accused on a scooter was admitted by him. But thereafter he gave a different version stating that when he reached the office of the accused, he was worried and so he entrusted the currency notes to PW2. His further statement was that PW2 asked him that when accused was coming he (PW1) should hold the hands of the accused and tell the matter, evidently a story invented by the defence. The defence also tried to build-up a case that it was PW2 who went to the office of the accused. But during cross examination it was admitted by PW1 that when he was talking with the accused from the office of the accused, PW20 and other officers reached there. It was also admitted by PW1 that from the office of PW20, he was instructed by PW20 as to the signal to be given when the accused accepted the bribe money. The story told by PW1 that he was asked by PW2 to hold the hands of the accused and he had in fact entrusted the Crl.A.No.1095 of 2001 -: 13 :- money to PW2 stands belied by PW2 even though he also turned hostile to the prosecution. PW2 has stated that he did not even go to the office of the accused. At another place it was admitted by PW1 that he had entrusted the currency notes to PW20 from his office (office of PW20) and when those currency notes were returned to him by PW20, after it was smeared with the powder, other officers were also there, though he says that he doesn't know whether they were the Tahasildars. PW1 had studied up to 10th standard. It is evident that this witness was won over by the accused. The learned Public Prosecutor would submit that the suggestive questions put by the defence to PW1 and the answers given by him would show that PW1 was not only won over by the accused but was doctored to give a distorted version that as directed by PW2 he held the hands of the accused and requested him to do the favour as requested. How could such suggestion be put to PW1 unless PW1 and PW2 were tutored in that line by the Crl.A.No.1095 of 2001 -: 14 :- defence, is the pertinent question posed by the learned Public Prosecutor. When that suggestive question was put, the accused readily answered that it is correct.
11. Learned Public Prosecutor submits that 'a fact' can be proved not only be direct evidence but also by circumstantial evidence. Therefore, simply because PW1 betrayed the prosecution with regard to the demand made by the accused and the handing-over of the currency notes to the accused the case cannot be thrown over board and that from the totality of the evidence and circumstances, it can be found without any iota of doubt that the accused demanded and accepted Rs.1,000/- from PW1.
12. PW20, the Dy.S.P. has given evidence that Ext.P1, the F.I.Statement was given by PW1 and it was recorded by him and that thereafter preliminary enquiry was conducted to discern the truthfulness of the complaint and after ascertaining the correctness, the F.I.R. was registered. Evidently it was done by PW20 in view of the directions Crl.A.No.1095 of 2001 -: 15 :- contained in the judgment of the Apex Court in Sirajuddeen's case [AIR 1971 SC 520]. It was further stated by PW20 that Ext.P1 contains the signature of PW1. That is not disputed by the defence also. It was stated by PW1 that PWs.3 and 4 reached his office at about 2.45 PM on the same day and in their presence also PW1 told about his complaint and thereafter the contents of Ext.P1 were read over to PW3 and PW4. That fact was also not effectively challenged by the defence. Therefore, the learned Public Prosecutor is perfectly right in his submission that Ext.P1 was the statement given by PW1 and that it was signed by PW1 in the presence of PW20. That was signed by PW20 and it was based on that, the F.I.R. was registered by him. So much so, the contention that the complaint (Ext.P1) was not given by PW1 must fall to the ground.
13. It is also in evidence that when PWs.3 and 4 appeared before PW20, the phenolphthalein test was Crl.A.No.1095 of 2001 -: 16 :- demonstrated. Mahazar was prepared for that purpose. The evidence would further show that six currency notes which were smeared with phenolphthalein powder were put in the pocket of PW1. The fact that phenolphthalein test was demonstrated and thereafter the currency notes were entrusted to PW1 was corroborated by PWs.3 and 4. Therefore, that part also stood proved to the hilt. PW6 is a police constable who was present in the office of PW20 while phenolphthalein test was demonstrated. He had also accompanied PW20 and others to the office of the accused. His evidence would show that as instructed by PW20 he stood at a particular place so as to receive the signal relayed by PW20 and to relay the same to the other police officials so as to ultimately reach the same to PW20.
14. The evidence given by PWs.1, 3, 4 and 6 would show that they proceeded to the office of the accused at about 1.45 PM. They reached near the office of the accused at about 2.45 PM. Admittedly the accused was not in his Crl.A.No.1095 of 2001 -: 17 :- office at that time. He came back only at about 3.40 PM. According to PW20 he received the signal at about 3.45 PM indicating the acceptance of the tainted currency notes by the accused. When he received the signal he along with PWs.3, 4 and others went to the office. When they entered the office room of the accused they saw PW1 and accused talking each other. The evidence given by PW1 that he introduced himself as Dy.S.P., VACB and that he also introduced PWs.3 and 4 as the Tahsildars was not properly assailed by the defence. That evidence was rightly accepted by the learned Spl. Judge. It was stated by PW20 that when he asked the accused whether he had received bribe he did not reply orally but remained silent with a drooping head. It was stated by PW20, "
." The evidence given by PWs.3 and 4 is also to the effect that after they entered the office of the accused when he was asked as to whether he had received Crl.A.No.1095 of 2001 -: 18 :- the bribe money, the accused was seen rubbing both his hands together and also rubbing on the office table. That evidence corroborates the evidence given by PW20. In fact, the said conduct of the accused was practically admitted by the accused also. But it was tried to be explained stating that he did so as he was so dazed or puzzled. That explanation is found to be totally unacceptable. Had he not received currency notes and put it in the drawer of his office table, there was no necessity for him to get perplexed when the DYSP entered the room.
15. It is also important to note that when the accused was asked where he had kept the currency notes received from PW1, he only showed gestures indicating that the money was kept by him in the drawer of his office table; that is, he turned his face and pointed the drawer of the table by his eyes. That evidence given by PW1 is fully supported by PWs. 3 and 4. That evidence also could not be controverted by the defence. That is another circumstance Crl.A.No.1095 of 2001 -: 19 :- which was highlighted by the prosecution. Sri.S.U.Nazar, the learned Public Prosecutor would submit that when PW20 asked PW1 as to where the accused had kept the money then PW1 told him that it was kept by the accused in the drawer of the table. That admission or statement was part of the same transaction; namely, it was so proximate in time and place, having continuity of action and was stated by PW1 to PW20 in the presence of the accused and so it cannot be brushed aside as hearsay evidence. That part of the statement gets confirmed by the subsequent fact that the six currency notes were seen in the drawer of the table when PW3 opened the drawer as directed by PW20. Those currency notes were seen on the diary of the accused. It was found that those six currency notes bore the numbers as noted in Ext.P4, the entrustment mahazar prepared by PW20 when those currency notes were entrusted to PW1 after those notes were smeared with phenolphthalein powder. Therefore, it is conclusively proved that the six Crl.A.No.1095 of 2001 -: 20 :- currency notes which were at first given by PW1 to PW20 were smeared with phenolphthalein powder and those currency notes were entrusted to PW1 to be given to the accused on demand. Those currency notes were recovered from the drawer of the office table of the accused.
16. The next other circumstance to be proved by the prosecution is whether the accused had actually received those currency notes. The fact that the accused was found jittering and rubbing his hands together and also rubbing on the table as mentioned earlier was a relevant conduct to discern the mind of the accused, since it was done by the accused to erase the traces of phenolphthalein powder from his hands (from his fingers and palm). The further unimpeachable point is that when the accused was again trying to rub his fingers on his table he had to be physically prevented from doing so by holding the wrist of the hands of the accused. That evidence given by PW20 was well corroborated by PWs.3 and 4.
Crl.A.No.1095 of 2001 -: 21 :-
17. The evidence given by the aforesaid witnesses would further prove that thereafter the accused was asked to dip his fingers in the colourless lime water and then the lime water turned to pink in colour. That was indicative of the fact that his fingers happened to have contacted with phenolphthalein powder. The evidence would show that the lime water so turned pink in colour was taken in a bottle. It was closed, packed, sealed and labelled then and there and on that label the signatures of PWs.3 and 4 and also of the accused were obtained.
18. It was vehemently argued by the learned counsel for the accused that at the time of trial, the lime water in MO4 was not pink in colour. PW20 would say that it is slightly pink in colour but other witnesses would say that it is colourless. But the evidence given by PWs.1 and 3 is categoric and definite that when the accused dipped with his fingers it turned pink in colour and that was the liquid taken as MO4. It is needless to say that slight pink colour Crl.A.No.1095 of 2001 -: 22 :- would get faded within a few months. The trial took place more than three years after the incident. Hence there was possibility of getting the pink colour faded. In the light of the unassailable evidence that MO4 the lime water was pink in colour when the accused dipped his fingers would prove to the hilt that the currency notes were actually accepted by the accused and he put the same in the drawer of his office table.
19. The learned counsel for the accused wanted to contend that PW2 must have put the currency notes in the drawer of the table. PW2 has completely turned hostile. As observed earlier, the evidence given by PW1 that he had entrusted the currency notes to PW2 after he reached the office of the accused was denied by PW2. Similarly, the other contention that as directed by PW2, PW1 caught the hands of the accused was also denied by PW2. That theory was rightly rejected by the learned Special Judge.
20. It was argued at length that there was a time gap Crl.A.No.1095 of 2001 -: 23 :- of about one hour after PWs.1 and 2 reached the office of the accused and so it was possible for PW1 or PW2 to enter into the office room of the accused and then to put the currency notes in the drawer of the table of the accused. Ever so many arguments can be addressed wover to the imagination of the defence but the court has to analyse the evidence and circumstances and come to the conclusion based on the evidence adduced by the witnesses. The contention that somebody else must have put the currency notes without the knowledge of the accused in the drawer of his table is found to be a tissue of falsehood in the light of the unimpeachable evidence referred to earlier. That argument addressed by the defence was also rightly rejected by the learned Special Judge. The evidence given by PWs.1, 3 and 4 regarding the incident as to what transpired after PWs.3, 4 and 20 entered the office room of the accused was fully narrated in Ext.P5 mahazar which is a contemporaneous record. It was signed by PW20 and other Crl.A.No.1095 of 2001 -: 24 :- witnesses. The correctness and acceptability of Ext.P5 was also not seriously challenged by the defence.
21. It is important to note that when PW20 was examined, the suggestion put to him by the defence was that it was only a misconception that the accused turned his head or face towards the drawer of the table indicating that the money he received was kept in the drawer. There was no such case when PWs.3 and 4 were in the witness box. In other words, there was no denial of the fact that the accused had made such a gesture.
22. It is also in evidence that PW20 had put his initials on those 6 currency notes marked as MO1 series before those notes (MO1 series) were entrusted to PW1 as per Ext.P4. MO1 series when identified before the court also contained those six initials put by PW20. It was also contended by the defence that there is no evidence to show that after the phenolphthalein test was demonstrated, the officers and other witnesses had washed their hands. But Crl.A.No.1095 of 2001 -: 25 :- clear evidence was given by Pws.3, 4 etc. with regard to the same. The fact that it was not so mentioned in Ext.P4 mahazar cannot in any way affect the case of the prosecution. The contention raised by the defence that fingers of the accused could have got contacted with phenolphthalein powder as his hands were held by the accused was rightly not accepted by the learned Special Judge since the attempt made by PW1 was foiled by PW2. The other attempt made by the defence was that when the accused was rubbing his fingers he was prevented from further doing so by holding his hand and so there was possibility of phenolphthalein powder getting touch with the fingers of the accused. That also is to be ruled out since the evidence is clear, cogent and convincing that the accused was prevented from doing so by holding his wrist and not his palm or fingers.
23. It was also argued by the defence that though the police officer was stated to have smeared lime water on the Crl.A.No.1095 of 2001 -: 26 :- table, where the accused had rubbed his fingers, there was no discolouration. It is a wooden rough surface. Therefore, the fact that the wooden surface did not show discolouration is of little significance.
24. It was also argued that the prosecution did not explain as to what PW20 and others were doing for about one hour after they reached the office of the accused. The accused admittedly reached only at 3.45 PM. What is germane for consideration is whether the acceptance of the tainted currency notes could be proved by the prosecution. PW20 and others were only waiting for the signal to be received indicating the acceptance of the bribe money. On receipt of the signal he proceeded to the office room of the accused along with PWs.3 and 4. There is nothing unusual or unnatural in it. From the evidence and circumstances delineated earlier, I have no hesitation to hold that the learned Spl. Judge has rightly accepted the prosecution case that the accused had accepted the bribe money, Crl.A.No.1095 of 2001 -: 27 :- namely; MO1 series from PW1. The fact that PW1 was won over by the accused and he did not depose in court that the accused demanded and he (PW1) paid the amount to the accused cannot in any way affect the unassailable evidence referred to earlier. Therefore, it is proved to the hilt that the accused accepted the bribe money as mentioned above. The circumstances detailed above would clearly show that it was voluntarily accepted by the accused. In such circumstances, the reasonable inference that can be drawn by the court is that the accused demanded and accepted MO1 series.
25. The learned counsel for the accused has relied on the decision of the Apex Court in State of Kerala v. Rao [2011 (2) KLT 812] in support of his submission that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The decision in Suraj Mal v. State (Delhi Crl.A.No.1095 of 2001 -: 28 :- Admn.) [(1979) 4 SCC 725] and C.M.Girish Babu v. C.B.I., Cochin, High Court of Kerala [(2009) 3 SCC 779] were relied upon by the Honourable Supreme Court in Rao's case and held :
"The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe conviction cannot be sustained."
The facts dealt with in those cases are not identical to the facts of this case. Here, the evidence given by PWs.3, 4 and 20 with regard to the positive result shown in the phenolphthalein test conducted, when the accused was asked to dip his fingers in the lime water and also recovery of the bribe money from the drawer of the office table of the accused has pointed out by the accused himself inspired the court below to accept the same. On a resurvey of the entire evidence, it is found that the appreciation of evidence made by the court below is well merited.
26. The learned counsel for the accused has relied Crl.A.No.1095 of 2001 -: 29 :- upon the decision in Panalal Damodar Rathi v. State of Maharashtra [(1979) 4 SCC 526] to fortify his submission that there is no evidence regarding the demand alleged to have been made by the accused. In the aforesaid decision it was held that when there is no corroboration of testimony of the complainant regarding the demand of bribe by the accused it has to be accepted that the version of the complainant is not corroborated and therefore, it cannot be relied on. Here, though PWs.1 and 2 did not fully support the prosecution the evidence given by PW1 and the contemporaneous records prepared by PW20 and the circumstances detailed earlier are sufficient to hold that the accused voluntarily accepted the bribe money. The circumstances would justify the court to draw the inference that the accused obtained the pecuniary advantage voluntarily and on demand. There was no case for the accused that he happened to receive the currency notes inadvertently or mistakenly. That apart, the conduct of the Crl.A.No.1095 of 2001 -: 30 :- accused as has been narrated earlier would also negative the plea raised by the defence.
27. Much was argued by the learned counsel for the accused in support of his submission that though a witness was requested to be summoned and the court below issued the process, as it was returned with the endorsement that the said witness was undergoing treatment as a mentally ill person, he could not be produced in court but though the accused made a further request to send the summons by registered post it was refused by the court below and as such he was denied opportunity to adduce defence evidence. The learned counsel has also relied upon the decision in Neelakantan v. State of Kerala reported in [1962 KLT 374] that the court should record its reasons as to why the examination of the witness shown in the list furnished by the defence is dispensed with or not proceeded with. It was already found that the report was to the effect that the witness was not in a position to be brought to the Crl.A.No.1095 of 2001 -: 31 :- court as he was lying ill as a mentally ill patient. The decision cited supra was a case dealt with under Sec.33 of the Evidence Act. Here it is not a case coming under Sec.33 of the Evidence Act.
28. The learned Prosecutor would submit that since the witness was undergoing treatment as a mentally ill person there was no purpose in sending notice again and hence the court below found that it was only a delaying tactics. Seeking examination of a witness for which no foundation was actually laid by the accused would be of no help since the credibility or acceptability of the evidence led by the prosecution had already been tested by the incisive cross examination made by the defence counsel. Therefore, the fact that on getting the report that the witness was lying ill as a mentally ill person the summons was not repeated will not in any way come to the rescue of the accused. The decision in Hari Dev Sharma v. State (Delhi Administration) [(1977) 3 SCC 352] is also not applicable Crl.A.No.1095 of 2001 -: 32 :- to the facts of this case since here the court has not disbelieved the essential and vital part of the prosecution case. There is the uncontroverted evidence that when the accused dipped his fingers in lime water it turned pink in colour. The accused himself showed gestures that the currency notes were kept by him in the drawer of his office table and it was from there the notes were taken out by PW3, the Tahasildar as directed by PW20. Hence the learned Special judge was impressed by that evidence to hold that the bribe money was voluntarily accepted by the accused.
29. Much was argued by the learned counsel for the accused, relying on the decision in Meena (Smt) W/o Balwant Hemke v. State of Maharashtra [2000 SCC (Cri.) 878] to fortify his submission that no shadow witness was present to watch or overhear the conversation between the complainant and the accused and so it is argued that mere recovery of the currency notes from the drawer of the Crl.A.No.1095 of 2001 -: 33 :- office table of the accused and the positive result of the phenolphthalein test are not enough to hold the accused guilty. It is true that PW20 did not instruct PWs.3 or 4 to see what happens inside the office room of the accused at the relevant time or to overhear the conversation between the accused and PW1. But in this case, the other evidence and circumstances particularly the conduct of the accused would clinchingly prove the voluntary acceptance of the bribe money by the accused.
30. The decision in Lachman Dass v. State of Punjab [AIR 1970 SC 450] is also to be distinguished since in this case the circumstantial and documentary evidence created no room for doubt and the defence version was found to be improbable unlike in the case cited supra. The decision in Banarsi Dass v. State of Haryana [AIR 2010 SC 1589] is also to be distinguished since there is evidence and circumstances in this case to hold that there was demand and voluntary acceptance of the bribe. In the case Crl.A.No.1095 of 2001 -: 34 :- cited supra there was no cogent and reliable evidence to support the charge against the accused and even the recovery was not proved in accordance with law. Here each link of the chain of events is established pointing towards the guilt of the accused. The offence charged could be proved beyond reasonable doubt, by circumstantial evidence.
31. It is also argued by the learned counsel for the accused that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the P.C.Act. It was held by the Apex Court in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede [(2010) 2 SCC (Cri.) 385] :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the Crl.A.No.1095 of 2001 -: 35 :- presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
As stated earlier, the facts of the case are entirely different. The facts and circumstances obtained in this case would unmistakably lead to the irresistible conclusion that the accused demanded and accepted the bribe money.
32. It was held in M.Narsinga Rao v. State of A.P. [(2001) 1 SCC 691] :
"It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of Crl.A.No.1095 of 2001 -: 36 :- the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
The learned Prosecutor Sri.S.U.Nazar would submit that the decision in Narsinga Rao was rendered by a three Judges Bench of the Apex Court and is applicable to the facts of this case. That was also a case where there was no direct evidence that the accused demanded and accepted the money but the evidence and circumstances adduced in that case were sufficient to establish that the accused had accepted the amount which gave rise to a presumption under Sec.20 of the Prevention of Corruption Act that the accused accepted the sum as illegal gratification especially because the defence theory put forth in that case was not acceptable. It was held by the Apex Court in Raghubir Singh v. State of Haryana [1974 SCC (Cri) 596] the three Judges Bench observed that the very fact that the accused was in possession of the marked currency notes against the allegation that he demanded and received that amount is Crl.A.No.1095 of 2001 -: 37 :- "res ipsa loquitur". In Narsinga Rao's case the decision in Hazari Lal v. State (Delhi Admn.) [(1980) 2 SCC 390] was followed where it was held that it is not necessary that the passing of money should be proved by direct evidence. It can also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead, as was held in that case, to the only inference that the money was obtained by the accused from PW3. It was held in Hazari Lal's case mentioned above :
"Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW3, who a few minutes Crl.A.No.1095 of 2001 -: 38 :- earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money form PW3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below."
33. It was held by the Apex Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra [(2000) 8 SCC 571] :
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable think can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated Crl.A.No.1095 of 2001 -: 39 :- in the context to mean any payment for giving satisfaction to the public servant who received it."
The dictum laid down in the decision cited supra was followed by the three Judges Bench in Narsinga Rao and held that the court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing public duty. In the light of the evidences and circumstances discussed earlier, the argument to the contrary advanced by the learned counsel for the accused is found unacceptable. I have no hesitation to hold that the prosecution could prove that the accused accepted MO1 series currency notes (Rs.1000/-) from PW1 as motive or reward for doing favour to PW1; ie, to reduce the penalty amount and as such, the conviction of the appellant for the offence under Sec.7 is only to be confirmed. Point Nos.3 and 4
34. The learned counsel for the appellant vehemently argued that there is no evidence to show that the accused obtained the pecuniary advantage on demand so as to Crl.A.No.1095 of 2001 -: 40 :- attract Sec.13(1)(d) which says that in order to attract the offence of criminal misconduct it should be proved that the accused by corrupt or illegal means obtained for himself or for any other person any valuable thing or pecuniary advantage. In other words, according to the defence, there should be voluntary and positive act on the part of the accused. Here the evidence would show that it was not a mere acceptance that could be proved by the prosecution. The circumstances detailed earlier (while discussing Point No.2) would sufficiently indicate that he received the amount as he had demanded for the same. In other words, it was the amount demanded that was paid by PW1 and which was accepted by the accused. Therefore, I hold that the offence under Sec.13(1)(d) of the P.C.Act which is punishable under Sec.13(2) is also well established. As referred to earlier, even if it is accepted that the accused did not enter the workshop of PW1 there is evidence to show that he had gone to that place. The further fact the Crl.A.No.1095 of 2001 -: 41 :- Ext.P27(b) was signed by the accused and that the penalty amount payable by PW1 was not mentioned therein would show the dubious design. According to the prosecution once the amount is mentioned in the notice, it would be difficult for the accused to show a lesser amount. It was the accused, being the Assistant Executive Engineer, who was to finally decide the quantum of penalty payable in respect of the act done namely the unauthorised drawing of electricity from the residential house of PW16. The circumstances would show that the accused agreed that the penalty payable by PW1 would be reduced on payment of the amount demanded as bribe. The cumulative effect of the evidence and circumstances would certainly lead to the irresistible conclusion that the accused obtained pecuniary advantage to the extent of Rs.1,000/- as part of the amount agreed to be obtained from PW1. As such the conviction of the appellant/accused for the offence punishable under Sec.13(1)(d) r/w Sec.13(2) of the P.C.Act is also to be Crl.A.No.1095 of 2001 -: 42 :- confirmed.
35. The learned Special Judge sentenced the appellant to undergo R.I. for two years each for offences punishable under Secs.7 and 13(1)(d) r/w Sec.13(2) of P.C.Act, 1988. He was also sentenced to pay Rs.10,000/- each as fine with a default sentence of imprisonment for one year each for the two offences. The substantive sentences were directed to run concurrently. Learned counsel for the appellant submits that the accused is aged about 62 years and that he was in fact dismissed from service and so leniency may be shown. Considering all the aspects, the substantive sentence awarded for the offence under Sec.13 (2) r/w Sec.13(1)(d) is reduced to R.I for one year and the sentence awarded for the offence under Sec.7 of the Act is reduced to R.I for 6 (six) months. The sentence regarding payment of fine is to be confirmed.
In the result, this Criminal Appeal is disposed of as stated below:-
Crl.A.No.1095 of 2001 -: 43 :-
The conviction of the appellant for the offence under Secs.7 and 13(2) r/w 13(1)(d) is confirmed. While maintaining the sentence of fine awarded by the courts below for the offences mentioned above, substantive sentence for the offence under Sec. 13(2) r/w 13(1)(d) will stand reduced to R.I for one year and sentence awarded for the offence under Sec.7 of the Act is reduced to R.I for 6 months. Substantive sentence will run concurrently.
N.K.BALAKRISHNAN, JUDGE.
Jvt