Kerala High Court
K.N.Ramesh vs State Of Kerala Rep. By The on 4 November, 2010
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
THURSDAY, THE 4TH DAY OF NOVEMBER 2010/13TH KARTHIKA 1933
CRA.No. 697 of 2001 (A)
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CC.1/2000 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM
...........
APPELLANT/ACCUSED:
K.N.RAMESH, S/O NANU, FORMERLY
SENIOR CO-OPERATIVE INSPECTOR,
OFFICE OF THE DEPUTY DIRECTOR,
DAIRY DEVELOPMENT, KOLLAM.
BY ADVS.SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SMT.RESMI G.NAIR
RESPONDENT/COMPLAINANT:
STATE OF KERALA REP. BY THE
PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.B.VINOD
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04-11-2010 ALONG WITH CRLMC NO.1648/2004, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
K. HEMA, J.
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Crl.Appeal.No.697 of 2001
& Crl.M.C.No.1648 of 2004
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Dated this the 4th day of November, 2010
JUDGMENT
Is mere recovery of tainted money from possession of accused during trap sufficient to convict him for offence under Section 7 or Section 13(1)(d) of the Prevention of Corruption Act ('the Act', for short)? Is mere receipt of money by a person from another sufficient to prove "acceptance" of any "gratification", for purpose of Section 7 of the Act? Mainly, these two questions arise for consideration in this case.
2. According to prosecution, PW1 was working as Secretary of a Co-operative Society. Certain allegations were made against him that he misappropriated `.30,000/- from the Society. Hence an enquiry was conducted against him by PW4, a Senior Co-operative Inspector, attached to the Office of the CRA 697/01 & CRMC 1648/04 2 Deputy Director of Dairy Development. The appellant and PW4 shared the same chamber in the office and both of them went for inspection of the Society in the same car. To settle the enquiry in favour of PW1, and as a motive or reward for doing so, appellant demanded `.3,000/- as bribe from PW1 on 31.12.1998 at his office. He again made demand for bribe over phone on 06.01.1999. But, PW1 was not prepared to pay bribe. He informed PW6, Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau ('VACB' for short) and a trap was arranged.
3. A complaint (Exhibit P1) was made by PW1 to PW6, Deputy Superintendent of Police, on 07.01.1999 at about 4 p.m., based on which, Exhibit P1(f) FIR was registered by PW6. On the next day, on 08.01.1999 at about 11 a.m., as arranged, PW1 handed over tainted currency notes (MO1 series) to appellant at his office and it was accepted by accused. Thereafter, signals were given by PW1, which were further conveyed by PW2 to PW6. Thereafter, officials rushed to the cabin of accused and Phenolphthalein test was done and it was confirmed that accused CRA 697/01 & CRMC 1648/04 3 accepted `.3,000/- (MO1 series) from PW1.
4. Investigation was conducted and on competition of the same, charge sheet was laid by PW6 against appellant before Court of Enquiry Commissioner and Special Judge ('Special Judge' for short) for offences Sections 7 and 13(2) read with Section 13 (1)(d) of the Act. The trial court framed charge against the appellant as follows:
"That you the accused being a public servant while working as Senior Co-operative Inspector in the Office of the Deputy Director, Dairy Development, Pullikkada, Kollam on 31.12.1998 at your office demanded Rs.3,000/- from CW1 Yesodharan, the Former Secretary of the Ambalakkara Ksheerothpadaka Co-operative Society and repeated your demand over phone on 6.1.1999; and accepted Rs.3,000/- as gratification other than remuneration at 11.10 a.m. On 8.1.1999 at your office mentioned above, as a reward for settling the complaint sent by the Board of Directors of the Ksheerothpadaka Co-operative Society, Ambalakkara and thereby you the accused obtained pecuniary advantage and such you committed the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and within the cognizance of this Court."
5. Prosecution examined PW1 to 7 and marked Exhibits CRA 697/01 & CRMC 1648/04 4 P1 to P17 on its side. MO1 to MO7 were also marked. The accused was questioned under Section 313 of Code of Criminal Procedure ('the Code' for short). He pleaded innocence and made a detailed statement. For appreciation of the contentions raised by both sides, it is necessary to refer to portions of his statement as follows:
Appellant did not make any demand to PW1 nor did he accept any bribe. PW4 and appellant were working in the same office in the same capacity as Co-operative Inspectors and specific local jurisdiction was also fixed for each of them. PW1's Society falls within the jurisdiction of PW4 and appellant had no occasion to go to the said Society for any inspection. He also has no authority to inspect any records of the said Society.
The records of the society were all inspected by PW4 himself and not by appellant. On 26.11.1998, PW4 alone went to the Society of PW1 for inspection, and on that day, appellant had inspection in Mylapur Society. This fact will be revealed from attendance Register and Tour diary relating to the appellant on 26.11.1998.
PW1 deposed that it was PW4 who made the demand over phone and he also recorded the telephonic conversation in a cassette. According to PW1, this fact was disclosed to the police, when PW1 made a complaint to PW6 against PW4. This is known to police on 5.1.1999 itself.
PW1 had made a complaint to DW1 against PW4 and DW1 had directed PW1 either to give a complaint in writing or to give the complaint to Vigilance. On 8.11.1999, PW1 had gone to the office of PW6, with the cassette before the trap was arranged.
It is not correct to say that FIR was registered at 4 pm on 07.01.1999. It was only after 08.01.1999 that FIR was prepared. The appellant was produced before the CRA 697/01 & CRMC 1648/04 5 residence of the Judicial Officer on the next day at 6.15 p.m. The FIR was produced before learned Magistrate at his residence only on 08.01.1999 at 6.30 p.m. and not as stated in FIR.
There are corrections in the General Diary which will indicate that FIR was not registered on the date and time as alleged by prosecution.
The appellant has not signed in the Log book, but his name is recorded by somebody in the Logbook to create evidence against him.
On 08.01.1999 at about 10 a.m., appellant had gone out of the office and came back at 11 am, while he was told that PW4 had informed over phone that he would be late to come to office and that his relative one Yasodharan would come to office with Rs..3,000/-. Appellant was asked to receive the same. Within few minutes, PW1 came to the cabin when appellant asked him whether PW4 had come to the office. Appellant then confirmed that PW1 was the person referred to by PW4 and thereafter, he received the money which was kept by PW1 on the table. Appellant kept it in the drawer of the table and assured PW1 that it would be entrusted to PW4.
By the time, police came there. When appellant was attempted to be arrested, DW2 who is a staff of the office explained the true facts to police, but in spite of it, appellant was removed to the office of the VACB. Appellant was not aware that amount entrusted by PW1 was bribe money. Appellant sent a complaint to Chief Minister explaining his innocence. He complained that he was implicated falsely even though the investigating officer was in possession of the cassette which will reveal the true facts. An enquiry was ordered, and Superintendent of Police, Vigilance conducted an enquiry. FIR was registered by PW6 and he himself conducted the investigation and laid the charge.
6. On an analysis of evidence and other materials, learned Special Judge held that it is proved that currency notes (MO1 series) were recovered from appellant's possession and CRA 697/01 & CRMC 1648/04 6 appellant also admitted acceptance of tainted currency notes (MO1 series). Hence, prosecution is relieved of the duty to prove motive or reward for which, the gratification was accepted, by virtue of Section 20 of the Act, it is held. A presumption was also drawn by court below that appellant accepted MO1 series for "doing or forbearing to do an official act". It was also held that accused obtained money by abusing his official position as a public servant.
7. The appellant was convicted for offence under Section 13(1)(d) of the Act and also under Section 7 of the Act. The appellant was sentenced to undergo rigorous imprisonment for four years and to pay a find of `.30,000/- for offence under Section 7 of the Act. In default of payment of fine, accused is sentenced to undergo rigorous imprisonment for one year. He is also sentenced to undergo rigorous imprisonment for three years for offence under Section 13(2) read with Section 13(1)(d) of the Act. This appeal is filed against the said conviction and sentence passed against appellant.
8. While discussing evidence, certain adverse remarks CRA 697/01 & CRMC 1648/04 7 were also made by the court below against DW1, Deputy Director. Hence, Crl.M.C.No.1648/2004 is filed to expunge such observations. Both these matters are heard and disposed of by this judgment.
9. Heard both sides in detail. Perused records and the impugned judgment. Sri.Jaju Babu, learned counsel for appellant vehemently argued that conviction of appellant for offence Sections 7 and 13(2) read with Section 13(1)(d) of the Act is totally illegal and unsustainable, since prosecution failed to prove "demand" of bribe. According to him, to convict a person for offence Sections 7 and 13(2) read with Section 13(1)(d) of the Act, prosecution must prove that accused demanded bribe.
10. It is also submitted by learned counsel for appellant that PW1 who is the sole witness examined to prove demand turned hostile to prosecution and he did not say that any demand was made by appellant for bribe. It was also argued that evidence in this case amply shows that the money was intended to be given to PW4 and not to appellant. Since PW4 was not present in the office, appellant received MO1 series from PW1, as CRA 697/01 & CRMC 1648/04 8 instructed by PW4 through DW2. He was not aware that it was bribe money. Still, appellant was illegally convicted, it is submitted.
11. Sri.R.Suraj Kumar, learned counsel appearing for petitioner in Crl.M.C., submitted that court below made adverse observations against DW1 and also directed a departmental enquiry to be conducted against him, but there is absolutely no reason for making such observations. Pointing out various aspects and evidence, it was argued that though evidence of DW1 is in favour of appellant, it is only consistent with other evidence and documents produced in this case but court below has taken a prejudicial view against DW1 and entered several adverse findings against him. DW1 was not even heard before passing adverse remarks against him and hence, adverse observations may be expunged, it is submitted.
12. Learned Public Prosecutor argued that on the totality of the evidence and circumstances, it cannot be said that the conviction is bad. The tainted currency notes (MO1 series) were seized from possession of appellant and it is also admitted CRA 697/01 & CRMC 1648/04 9 by him, but, he has no acceptable explanation for the same. In any case of trap, accused can raise a plea that he did not know it is bribe money and that it was not intended to be given to him and he is innocent etc. Such contentions may not be entertained, it is submitted. Appellant's conduct in first denying acceptance of MO1 series and thereafter, admitting the same during trap also.
13. According to learned Public Prosecutor, even if offence under Section 13(1)(d) may not lie for want of proof of demand, conviction under Section 7 cannot be disturbed, since "acceptance" of bribe is sufficient to prove under Section 7. Further, presumption which can be drawn under Section 20 of the Act against accused that he accepted bribe as a reward or motive to do something, but such presumption is not rebutted by appellant and hence, no interference is called for, it is submitted.
14. On hearing both sides, I find that it relevant to have a look at the relevant provisions first. Section 13 of the Act [excluding portions other than Section 13(1)(d) and 13(2)] reads as follows:
"13. Criminal misconduct by a public servant.--(1) A public servant is said to CRA 697/01 & CRMC 1648/04 10 commit the offence of criminal misconduct,--
(a) xxx or
(b) xxx or
(c) xxxx or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) xxx Explanation.--xxxx.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine".
(emphasis supplied)
15. Section 7 (excluding portions which are not very relevant for disposal of this case) is extracted hereunder:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing CRA 697/01 & CRMC 1648/04 11 to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanations.--(a) xxxx.
(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) xxxx
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e)xxxx".
16. A reading of Section 13 of the Act shows that to constitute offence under Section 13(1)(d) read with Section 13(2) of the Act, prosecution must prove that accused "obtains" any valuable thing or pecuniary advantage. The word, "obtain" is not defined under the Act. Going by the dictionary, the word "obtain" means "to secure or gain (something) as the result of request or CRA 697/01 & CRMC 1648/04 12 effort" (Shorter Oxford Dictionary); "to get something, especially by making an effort" (Oxford Advanced Learners Dictionary 5th edition).
17. Hence, to prove offence under Section 13(1)(d) of the Act against an accused, prosecution must establish that accused made effort to get any valuable thing or pecuniary advantage, as a public servant. This may be by request or demand. So, mere proof of recovery of tainted currency notes from possession of a public servant during trap or mere admission by accused that he received currency notes is not sufficient to convict him for offence under Section 13(1)(d) of the Act. Prosecution must adduce evidence to show that accused had taken effort to get such money by demand, request etc.
18. Of course, recovery of tainted currency notes during trap or admission of accused that he received the same may be one of the circumstances, which prosecution can rely upon, to prove that he "obtained" bribe money. But, that alone may not be sufficient to hold that accused "obtained", as required under Section 13(1)(d) of the Act. It is the bounden duty of the CRA 697/01 & CRMC 1648/04 13 prosecution to prove either by direct or circumstantial evidence, all ingredients of offence under Section 13(1)(d) including the fact that accused "obtained" any valuable thing or pecuniary advantage i.e., he took effort to get valuable thing or pecuniary advantage by demand or request etc. From the facts and circumstances proved, court must be able to safely conclude that accused took effort by request or demand to get valuable thing or pecuniary advantage.
19. In C.K. Damodaran Nair v. Government of India ((1997) 9 SCC 477), referring to the word, "obtain" in Section 5(1)(d) [which corresponds to Section 13(2) of the 1988 Act] Supreme held that "demand" for bribe is a primary requisite for the offence under the said Section. Section 13(1)(d) of the Act also refers to the same expression "obtains" and hence, the same principle will apply to a case involving offence under the said section. The Supreme Court also made a distinction between the requirements of Section 161 (corresponding to Section 7) and Section 5(1)(d) (corresponding to Section 13(1)(d)) of the Act and also scope of presumption under the Act etc. and it is CRA 697/01 & CRMC 1648/04 14 held thus:
"Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act". (emphasis supplied).
20. However, to make out offence under Section 7 of the Act, it may not be imperative to prove in all cases that accused "obtained" bribe. Depending on the facts of the case, it may be enough, if it is proved that accused "accepted" any gratification other than legal remuneration. This is one of the major differences between offence under Section 13(1)(d) and Section 7 of the Act. The expression used in Section 7 is, "accepts or obtains" any "gratification". So, while under Section 13(1)(d), it must be proved that pecuniary advantage or valuable thing is "obtained" by accused, depending on the facts of the case, it may be enough, if prosecution proves that accused "accepted" any gratification other than legal remuneration, to prove offence under Section 7 of the Act.
CRA 697/01 & CRMC 1648/04 15
21. "Accept" is different from "obtain". The word, "accept" is not defined under the Act. The word "gratification" is also not defined under the Act, though it is explained under the Act. As per Oxford Learners Dictionary 5th Edition, "gratification" means "something which gives you pleasure". So, "gratification" does not mean the mere article, money or material which a person may receive. To constitute "gratification" under Section 7 of the Act, the article which he receives must give him some pleasure.
22. This will be clearer from Explanation (b) to Section 7 of the Act itself. As per the said provision, the word "gratification" is explained. It is laid down therein that "gratification" is not restricted to "pecuniary gratifications or to gratifications estimable in money". It is curious to note that while explaining the word "gratification", legislature used the very same expression "gratification" to qualify the term "pecuniary" and coined the word, "pecuniary gratification". If money itself is "gratification", it is unnecessary to qualify the word "pecuniary" by "gratification" but, it would be enough if it was described as CRA 697/01 & CRMC 1648/04 16 money itself. Therefore, the description "pecuniary gratification"
itself indicates that "gratification" is some thing more than money or some valuable thing which is estimable in money.
23. In Mohmoodkhan Mahboobkhan Pathan v.
State of Maharashtra ((1997) 10 SCC 600) Supreme Court, referring to the word "gratification" used in the Prevention of Corruption Act, 1947 held thus:
"In the Oxford Advanced Learner's Dictionary of Current English, the word `gratification' is shown to have the meaning `to give pleasure or satisfaction to'. The word `gratification' is used in Section 4(1) to denote acceptance of something to the pleasure or satisfaction of the recipient".
24. In Madhukar Bhaskarrao Joshi v. State of Maharashtra, ((2000) 8 SCC 571) at paragraph 12, it is held thus by Supreme Court:
"the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
25. In this context, the meaning of the word "accept" can also be looked into, because it will further clarify the import of the word "gratification". "Accept" means, "to take willingly CRA 697/01 & CRMC 1648/04 17 some thing that is offered" (vide Oxford Advanced Learners Dictionary 7th Edition). "Accept" pre-supposes an offer and unless something is offered, there cannot be acceptance. Therefore, a mere receipt of something is not "acceptance". If a person merely receives some thing from another, without there being an offer from the latter, it is not "acceptance". "Offer" means, some thing (money) which a person is willing to pay for some thing (vide Oxford Advanced Learners Dictionary 7th Edition).
26. Therefore, to hold that an accused "accepted" any "gratification", under section 7 of the Act, prosecution must prove that some thing (may be money etc.) was offered by a person to accused for something and he willingly took the same from such person and in taking such thing, he gained some pleasure or satisfaction. Such facts have to be proved either by direct or circumstantial evidence. From the evidence adduced, (either direct or circumstantial) and other materials, court must be able to safely conclude that accused "accepted" "gratification" other than legal remuneration, as stated above.
CRA 697/01 & CRMC 1648/04 18
27. Therefore, mere handing over money, by a person to accused, without there being an offer to accused for something and mere receipt of such money by accused, which does not give him any pleasure or satisfaction, will not constitute "acceptance" of any "gratification". If a person merely hands over money to an accused which is meant to be given to another, it cannot be said that such money was offered to accused for doing some thing nor can it be said that receipt of such money by accused would give him any pleasure or satisfaction. Consequently, it cannot be said in that case that the accused "accepted" any "gratification" as required to prove offence under Section 7 of the Act. Therefore, it follows that mere recovery of tainted currency notes during trap from possession of accused or his admission of receipt such currency notes alone will not prove that accused "accepted" any gratification under Section 7 of the Act.
28. The Supreme Court, in Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra ((1997) 10 SCC 600), held, "if the money paid is not for personal satisfaction CRA 697/01 & CRMC 1648/04 19 or pleasure of the recipient it is not gratification in the sense it is used in the section." In several other decisions also, the same view was followed by Supreme Court. In State of Assam v. Krishna Rao ((1973) 3 SCC 227) also, Supreme Court held, "the word "gratification" in Section 4(1) was to be given its literal dictionary meaning of satisfaction of appetite or desire; it could not be construed to mean money paid by way of a bribe".
29. So, having discussed what is meant by "obtain", "accept" and "gratification" in Section 13(1)(d) and Section 7 of the Act, I will analyse the evidence in this case to decide whether prosecution proved that appellant accepted any gratification, as referred to in Section 7 of the Act or obtained any valuable thing or pecuniary advantage to constitute offence under Section 13(1)
(d) of the Act. PW1 is the alleged bribe-giver who was examined to prove demand for bribe. He turned hostile to prosecution and stated that appellant did not make any demand for bribe. No other evidence is also adduced to show that appellant demanded any bribe from PW1 or took any effort to get MO1 series, the tainted currency notes.
CRA 697/01 & CRMC 1648/04 20
30. In fact, evidence in this case strongly indicate that PW1 had no reason to offer any bribe to accused. PW1 deposed that his dealings were with PW4, who was in charge of the Society where PW1 was working and it was from PW4 that he required some favour in connection with the enquiry held against PW1. The Society comes within the jurisdiction of PW4 and it was PW4 who demanded money it is stated by PW1. He also deposed that MO1 series were intended to be given as bribe to PW4 and not to appellant. PW1 stated that the money was received by appellant since PW4 was not available in his chamber and hence, when PW6, Dy.S.P asked him whether money was given, he replied in the affirmative.
31. PW4 admitted that the Society where PW1 was working as Secretary falls within his jurisdiction and he was instructed to conduct inquiry against him. PW4 also stated that he conducted an enquiry into the allegations made against PW1. The evidence of PW4 reveals that it was he who had the authority to take action in the enquiry initiated against PW1 on the basis of a complaint made against him. Thus, it is clear that if at all CRA 697/01 & CRMC 1648/04 21 any public servant could do any favour to PW1 in the enquiry, it is only PW4 and not accused.
32. DW1 is the Deputy Director (Dairy Farm). He was cited as a prosecution witness. Though he is a material witness, he was given up by prosecution. Hence, he was examined as defence witness. He gave evidence that several Co-operative Inspectors were working in his office, out of which, 'A' Unit is within the jurisdiction of accused and 'B' Unit is within the jurisdiction of PW4 and both of them had independent jurisdiction. It is also stated by DW1 that PW4 was entrusted with the complaint relating to PW1 and he was directed to conduct an enquiry. He also said that the report submitted by PW4 is Exhibit P5(b). It is seen from Exhibit P5 that PW4, the Inspector gave report to the Deputy Director (DW1) stating that `.30,000/- is yet to be remitted with 18% interest and instructions were given for making payment.
33. DW1 also deposed that after the report was given, PW1 had made a complaint to him on 05.01.1999 that PW4 had demanded bribe from him. DW1 asked PW1 to give a complaint CRA 697/01 & CRMC 1648/04 22 in writing so that he could take some action. DW1 also told him that PW1 could make a complaint to the police also. In this regard, DW1's evidence is also corroborated by evidence of PW1 who deposed that PW4 demanded money in connection with enquiry. PW1 even deposed that he had recorded a telephonic conversation between himself and PW4 in a cassette relating to the demand and the cassette was handed over to PW6, the Dy. S.P. who registered the FIR and also investigated the case.
34. PW2, the Tahsildar, who is an independent official witness also deposed that he had seen the cassette being played by PW6-Deputy Superintendent of Police just before the trap. The fact that the cassette was given to PW6 is admitted by PW6. But, it was not produced in court. According to PW6, the said cassette was returned to PW1 as there was nothing in it. The explanation given by PW6 does not reconcile with probability or normal human conduct. It is unlikely that a recorded cassette would be carried by PW1 to PW6, if there was nothing incriminating in the cassette. If what PW1 stated is true, cassette will contain some incriminating evidence against PW4 but it will not contain CRA 697/01 & CRMC 1648/04 23 anything against appellant. So, non-production of cassette will cast a doubt on the prosecution case.
35. In this context, it is relevant to note that appellant made a complaint (vide Exhibit D6) to the Chief Minister stating that such a cassette was handed over to PW6 and that it would reveal the truth relating to the matter. He also stated therein that a false case was registered against him, after exonerating PW4. Exhibit D6 was sent to the Chief Minister, much before completion of investigation. According to appellant, an enquiry was conducted on the complaint and he was questioned also. In such circumstances, even if the cassette had been returned to PW1, investigating officer should have seized and produced the same in court since, on the facts and circumstances of this case, non-production may cast a serious doubt on the prosecution case. But, it was not done.
36. The appellant also stated in Exhibit D6 that on the date on which demand was allegedly made by appellant, he was not even present in office and it would be revealed from the attendance register. According to appellant, the official records CRA 697/01 & CRMC 1648/04 24 of the office, tour diaries and, attendance register etc. will all clearly show that PW4 alone handled the case and affixed his signature in the respective records and that petitioner was nowhere in the picture. Though all these official records are available in the office of the Deputy Director and the Society, investigating officer purposely failed to seize those materials, it is argued.
37. There is no explanation from PW6 why such documents were not seized nor produced. Of course, a log book was seized and produced. This was to prove that certain entries therein would show that appellant had gone to the Society of PW1, on the relevant date, along with PW4. This evidence is brought in to make it appear that appellant's alleged presence in the society could have created an impression in PW1 that he could do something in favour of PW1.
38. But, appellant has strong case that log book was fabricated. DW1, Deputy Director deposed that he had occasion to go through the log book (Exhibit P11) but, accused had not signed in the relevant columns in the log book. Instead, only PW4 CRA 697/01 & CRMC 1648/04 25 had signed. When he perused the log book, he found that name of appellant and another Society 'Vadakkevila' were inserted in the log book, but on a perusal of other relevant records, he came to know that neither accused nor PW4 had gone to 'Vadakkevila' on the said date.
39. DW1 identified handwriting in Exhibit P11(a) is that of PW4. He also deposed that the relevant entry relating to appellant was not there in Exhibit P11 originally and hence, he had rounded the said entry and put a question mark in the relevant column. Exhibit P11 reveals that an entry was rounded and a question mark was also put. This document was produced by prosecution itself. DW1 also deposed that on noting the above manipulations, DW1 had requested the Joint Registrar to take back PW4 within two months, cancelling his deputation.
40. DW1 also deposed that PW4 was, transferred on the complaint made by DW1 and he was relieved in March, 1999. This was within three months from registration of the case and much prior to completion of investigation. It is also stated by DW1 that normally, the term of an Inspector is for 2 to 3 years.
CRA 697/01 & CRMC 1648/04 26 But, PW4 had worked there only for 8 months since he was transferred before completion of the term. He also stated that a complaint was made by PW1 to him regarding demand of bribe by PW4.
41. A reading of the evidence of DW1, who is a senior official, would go to show that there was occasion for him to doubt integrity of PW4 and get him transferred within three months of registration of the case, even though ordinarily, he could work in the office for about 2 to 3 years. There is absolutely no reason to reject evidence of DW1. There is nothing on record to show why DW1 should prefer appellant and perjure in his favour and why he should have any motive to speak against PW4. There is no reason why DW1's evidence is rejected, which is consistent with prosecution records and other evidence.
42. However, the court below made some strong adverse observations against DW1. In paragraph 76, it is observed that "DW1 had made every effort to sabotage the prosecution by joining hands with the accused". The court below further observed that "unless stringent, prompt actions are taken CRA 697/01 & CRMC 1648/04 27 against public servants like DW1, it would inculcate a feeling among similar public servants to depose falsehood in court with impudence, with a view to save unscrupulous and corrupt public servants and that immediate action should be taken" against DW1.
43. It is also seen from the judgment that in several contexts, learned Special Judge has commented upon evidence of DW1 that it is "untrue". For example, it is held thus:
"DW1 would even go to the extent of saying that when the entry in Exhibit P11(a) was seen by him he requested the Joint Registrar to call back PW4 and it was on his request PW4 was recalled by the Joint Registrar. That is another untrue statement made by him. PW3 has stated that the transfer of PW4 was done as usual in the ordinary course and it was made on administrative grounds and not because of any complaint nor had it any connection with the incident in this case........ That also stands belied by the evidence of PW3. That is another false story told by DW1 to support the accused".
44. It is true that PW3 stated that the transfer of PW4 was on administrative ground as usual etc., which is contrary to evidence of DW1. But, it is brought out from his evidence that he had no direct knowledge about transfer of PW4 or the reasons for CRA 697/01 & CRMC 1648/04 28 transfer. PW3 admitted that the transfer order of PW4 was issued by his predecessor in office in March 1999 (i.e., one month prior to PW3's joining the office). PW3 deposed that he started working as a Joint Registrar only from April, 1999 but the transfer was in March 1999. In chief examination, PW3 marked an order, Exhibit P9, but it is not the transfer order of PW4; it the order of posting of appellant. In the above circumstances, PW3 could not have had direct knowledge about reasons for PW4's transfer and his evidence on such facts is only hearsay which cannot be acted upon.
45. However, direct evidence of DW1 is rejected by court below labelling it as "untrue" for the sole reason that it is contrary to evidence of PW3. The direct evidence given by a witness cannot be stated to be "untrue" only because it is in contradiction with hearsay evidence given by another witness. Hearsay is no evidence at all and worth of direct evidence given by a witness shall not tested against hearsay evidence given by another witness for rejecting direct evidence. To reject direct evidence, it must either be inherently improbable or infirm/ CRA 697/01 & CRMC 1648/04 29 vitiated due to any other valid reason. There must be cogent reasons for rejecting the same. At any rate, it will be an erroneous approach in appreciation of evidence to reject direct evidence of a witness by stating that it is "untrue" only because it is contrary to evidence of another witness, which is in the nature of hearsay.
46. At any rate, direct evidence given by a witness on a particular fact shall not be labelled as "untrue", unless court finds from some other evidence what the truth is. It must be borne in mind that the court may not know the truth about a disputed fact involved in a case but, it only makes certain inferences based on the evidence adduced before court. What the court may think to be true on the basis of evidence may, in some cases, be far away from truth. Therefore, the court must extremely cautious and careful before evidence of a witness is commented as "untrue" or false. There is a lot of difference in stating that evidence of a particular witness is unbelievable, unacceptable etc. than in saying that it is untrue, false, etc.
47. Ordinarily, the court has to respect every witness CRA 697/01 & CRMC 1648/04 30 who comes to court on its invitation to give evidence. The court shall not presume that all witnesses are dishonest. It shall also not proceed on a pre-conceived notion that a witness who speaks against prosecution or speaks in favour of accused is a dishonest person or that he is speaking falsehood. Unless there are strong and cogent reasons to hold that a witness is not speaking the truth in respect of a fact which is proved by other evidence, it shall not comment upon his evidence as "untrue", "false" etc. The court must show greater responsibility, before evidence of a witness is commented upon as false, untrue etc. The court must remind itself that every finding of a court is likely to result in serious repercussions to the career and even reputation of an individual.
48. It is also surprising to note that concern of court below was not in finding out truth, but it was more curious in getting some version which may be favourable to prosecution so that it could reject direct evidence which is in support of accused. Guided by such persuasions, the court below even acted upon hearsay evidence given by PW3 to hold that direct evidence given CRA 697/01 & CRMC 1648/04 31 by DW1 is untrue. The attitude of the court below is undesirable, biased and prejudicial. At any rate, there is no justification for lower court in holding that direct evidence of DW1 is "untrue", on the sole ground that it is in contradiction with hearsay evidence of PW3.
49. In Paragraph 51 of the judgment also, the court below commented that DW1 was "actually one of the parties to concoct false document and thrust in before court"', while considering evidence of DW1 regarding the entries in Exhibit P11
(a). I have already discussed about details of Exhibit P11 and held that there is no reason to reject evidence of DW1. It is clear from an independent evaluation of DW1's evidence that the findings entered into by court below against DW1 that he is one of the parties to concoct false document etc. are baseless and totally unwarranted.
50. Learned counsel appearing for DW1 submitted that before adverse observations were made against DW1, he was not even heard. No opportunity of hearing was given to DW1. The court ought to have heard DW1 before adverse comments were CRA 697/01 & CRMC 1648/04 32 made against DW1 which are likely to affect his future career and his reputation, it is submitted. Had he been heard, he would have been able to convince the court about his innocence and truth of the matter and hence, adverse observations made against DW1 may be expunged, it is submitted.
51. There can be no doubt that on the facts and circumstances of the case, all the adverse observations made against DW1 are totally unwarranted. A reading of the judgment and evidence shows that court below did not analyse evidence in the proper perspective but, it was biased in favour of prosecution while analysing and appreciating evidence. The contentions raised by accused were considered with a pre-conceived notion and the whole approach to the matter was biased and prejudicial. Though PW1 turned hostile and specifically stated that no demand was made by appellant, the court below over strained itself to enter a finding on the basis of the same evidence that a demand was made.
52. Learned Special Judge also observed that appellant was sharing the same cabin with PW4 and both were working in CRA 697/01 & CRMC 1648/04 33 the same capacity. Therefore, PW1 would have got an impression that the appellant can do some favour to PW1. It was also held that even if appellant's contentions are accepted, it will not be sufficient to exonerate him because, accepting gratification for another person is also an offence under Section 7 of the Act. In my view, these contentions are too far-fetched and beyond what are revealed from records.
53. Neither prosecution nor PW1 himself has a case that appellant accepted gratification on behalf of PW4. As per the charge framed by the court itself, appellant accepted gratification and obtained pecuniary advantage for himself, "as a reward for settling the complaint sent by the Board of Directors of the Ksheerothpadaka Co-operative Society...". It is not stated in the charge that bribe was accepted on behalf of PW4 for doing any favour to PW1. No investigation was also done to ascertain whether appellant could create an impression to PW1 that he could help him in the enquiry by influencing PW4 or bribe was accepted by appellant on behalf of PW4.
CRA 697/01 & CRMC 1648/04 34
54. Nothing is brought out in evidence to show that appellant, who had nothing to do with the enquiry, could give an impression to PW1 that he could do some favour to PW1 so that he was persuaded to bribe him. Going by normal human conduct, it is highly improbable also that unless a person gets an impression that official can do some favour to him as required by him, he would give bribe to him. In such circumstances, the finding of the lower court that presence of appellant in the same cabin would have given PW1 an impression etc. is based on surmises and not on any evidence in this case. It is also to be noted that the finding is even inconsistent with the details in the charge and hence, unsustainable.
55. Taking all the above facts and circumstances into consideration, I hold that mere proof of recovery of tainted currency notes from appellant and his admission of receipt of such money are not sufficient to hold appellant guilty of offences under Sections 13(1)(d) and 7 of the Act. The appellant himself explained the circumstances under which he received MO1 series currency notes, and he also adduced evidence in support of his CRA 697/01 & CRMC 1648/04 35 contentions. It is argued by learned Public Prosecutor, that any accused can put forward such a defence that he only received the money as requested by another person and that he did not accept the money as bribe. Hence, such a defence may not be entertained, it is argued.
56. It is true, a defence that accused only received some money without knowing it is bribe, etc. can be raised in all cases of trap. But, it does not mean that the court must accept such plea in all cases. When a contention is raised that money was not accepted as bribe, but it was received under a particular circumstance, which will establish his innocence or non- involvement in the offence, the court is bound to look into such contentions and decide whether those are acceptable or not. The court shall not ignore such plea without considering the same, by stating that it can be taken up by any person etc. On the facts of this case, it is clear that evidence and circumstances revealed from records support the defence plea rather than the prosecution case.
CRA 697/01 & CRMC 1648/04 36
57. On an analysis of entire evidence, I find that prosecution failed to prove that accused obtained or accepted any valuable thing or pecuniary advantage or gratification, as alleged by prosecution. It is highly improbable that PW1 would offer MO1 series as bribe to accused who could not have done any thing to help PW1 in the enquiry due to lack of jurisdiction to deal with the enquiry initiated against PW1. The evidence in this case would all point out to a possibility that PW1 would not have approached appellant for any favour and appellant would have made any demand for bribe or accepted MO1 series as bribe from PW1.
58. Learned Public Prosecutor also argued that presumption under Section 20 of the Act can be drawn in this case that accused accepted or obtained gratification, as a motive or reward such as is mentioned in section 7 of the Act. It was also argued that in the light of this presumption under Section 20, it is for the accused to rebut presumption and prosecution is relieved of its burden to prove that accused accepted or obtained gratification, as a motive or reward, it is argued. According to CRA 697/01 & CRMC 1648/04 37 learned Public Prosecutor, accused did not rebut presumption under Section 20 and hence, conviction under Section 7 is only sustainable.
59. Section 20 of the Act (only the portion which is relevant for disposal of this case) reads as follows:
"20. Presumption where public servant accepts gratification other than legal remuneration:-
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain 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 or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2)xxx.
(3) xxx".
60. Even a plain reading of Section 20 of the Act shows that as a pre-requisite for drawing presumption under the above section, it must be proved by prosecution that accused CRA 697/01 & CRMC 1648/04 38 "accepted" or "obtained" or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person. Without proof of any one of the above facts, as is applicable to the facts of each case, presumption under Section 20 of the Act shall not be drawn by court.
61. In this case, prosecution failed to prove that accused "obtained" or "accepted" MO1 series as "gratification" and hence, no presumption can be drawn under Section 20 of the Act to hold that he accepted it as "a motive or reward". Therefore, no burden is cast on accused to rebut presumption under Section 20 of the Act. On this ground also, prosecution cannot succeed.
62. To sum up, I hold that mere recovery of MO1 series from appellant alone is not sufficient to prove that appellant "obtained" MO1 series, as stated in Section 13(1)(d) of the Act or "accepted" any "gratification" as referred to in Section 7 of the Act. Hence, the conviction and sentence passed against appellant under Section 13(a)(d) read with Section 13(2) and CRA 697/01 & CRMC 1648/04 39 Section 7 of the Act cannot be sustained.
Hence, the following order is passed:
1) The conviction and sentence passed against the appellant under Sections 7 and 13(1)(d) read with Section 13 (2) of the P.C. Act are set aside.
2) The appellant is found not guilty and he is acquitted of the offences under Sections 7 and 13(1)(d) read with Section 13(2) of he P.C. Act.
3) The appellant is set at liberty forthwith.
4) All adverse observations made in the impugned judgment against DW1 are expunged and direction issued for initiating immediate action against him is set aside.
This appeal and Crl.M.C. are allowed.
K. HEMA, JUDGE.
sou/krs.