Kerala High Court
Bharat Raj Meena vs Central Bureau Of Investigation on 24 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 591 OF 2016
AGAINST THE JUDGMENT DATED 31.05.2016 IN CC NO.2 OF 2014 OF
SPECIAL JUDGE (SPE/CBI) - III, ERNAKULAM
APPELLANT/ACCUSED:
BHARAT RAJ MEENA
S/O.SRI.RAMDEV MEENA, AGED 43 YEARS, RESIDING AT
WARD NO.12, KHANPOLE GATE, NAINWA, DISTRICT-BUNDI
(RAJASTHAN)-323801.
BY ADVS.
ABRAHAM P.MEACHINKARA
P.MURALEEDHARAN(K/209/1984)
ALEXANDER K.C.(K/1057/2021)
MARGARET MAUREEN DROSE(K/1328/2019)
JAYAKRISHNAN P.R.(K/1659/2020)
THOMAS GEORGE(K/1723/2021)
RESPONDENT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION
ACB, KOCHI, ERNAKULAM, BY STANDING COUNSEL, HIGH
COURT OF KERALA, PIN-682031.
BY ADVS.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.591/2016
-:2:-
"C.R."
J U D G M E N T
This appeal has been preferred by the accused in CC No.2/2014 on the file of Special Judge, (SPE/CBI) III Ernakulam (for short, 'the trial court') challenging the judgment dated 31/5/2016 convicting and sentencing him under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act').
2. The appellant Bharat Raj Meena was working as Divisional Security Commissioner, Railway Protection Force, Palakkad in 2005. One Sri.P.P.Nandakumar (PW6), Clerk in DSC Office, Palakkad preferred a complaint alleging demand of bribe of `10,000/- by the appellant through PW2 Anantha Narayanan, Constable/RPF Coimbatore, for getting complainant's posting in Palakkad area following his medical decategorization from RPF and subsequent absorption in alternative post as clerk in Personnel Branch under DRM Office, Palakkad. Based on the said complaint, the Superintendent of Police, CBI/ACB, Kochi registered FIR vide No.RC19(A)/2005/KER/CBI under Sections 7 Crl.Appeal No.591/2016 -:3:- and 12 of the PC Act against the appellant and PW2 on 4/8/2005 and entrusted the investigation of the case to PW8. PW7 Nandakumaran Nair, Dy.S.P., CBI/ACB, Kochi, and his team laid a trap on the same day itself and at the instance of Dy.S.P./Trap Laying Officer aforesaid, tainted money of bribe was handed over by PW6 to PW2 which together with some other alleged bribe money in an envelope and personal cash and diaries were recovered from PW2 who was then arrested by CBI team. Thereafter, PW8, the investigation officer, after the investigation of CBI case RC19(A)/2005/CBI/KER dated 4/8/2005 registered based on the original complaint dated 4/8/2005 of PW6, filed three separate final reports on 31/7/2006 bearing Nos.04/SK/19/A/05/KER, 05/SK/19/A/05/KER and 06/SK/19/ A/05/KER, before the Court of Special Judge-II, CBI, Kochi for the prosecution of the accused under Sections 7 and 13(1)(d), Section 7 and 13(1)(d) and Sections 7 and 13(1)(a) of the PC Act respectively following tender of pardon of the principal accused PW2 and one Abdul Gafoor from the Court of Chief Judicial Magistrate, Ernakulam. The final report Nos.04/SK/19/A/05/KER and 05/SK/19/A/05/KER against the appellant were then taken up Crl.Appeal No.591/2016 -:4:- as CC No.2/2014 and CC No.3/2014 respectively by the trial court. The third final report No.06/SK/19/A/05/KER was quadrifurcated into four cases by the trial court under Section 219 of Cr.P.C. while framing the charges. The said cases after splitting up were then taken up as CC No.4/2014, CC No.2/2015, CC No.3/2015 and CC 4/2015 for trial. Thereafter, the trial court framed charges against the appellant in all the above six cases on 26/10/2015. The trial in all cases commenced simultaneously.
3. In CC No.2/2014 which is the subject matter of this appeal, PWs 1 to 8 were examined and Exts.P1 to P18 series were marked and MOs1 to 9 were identified on the side of the prosecution. DWs1 to 4 were examined and Exts.D1 to D25 were examined on the side of the defence. Exts.X1 to X1(b1) were marked as court exhibits. After trial, the appellant was found guilty, and he was convicted for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the PC Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of `1 lakh, in default to suffer simple imprisonment for six months for the offence under Section 13(2) r/w 13(1)(d) of PC Act, 1988. No separate sentence was awarded for the offence under Section 7 Crl.Appeal No.591/2016 -:5:- of the PC Act. Challenging the said conviction and sentence, the appellant preferred this appeal.
4. I have heard Dr.Abraham P.Meachinkara, the learned counsel for the appellant and Sri.Sreelal N.Warrier, the learned standing counsel for the CBI.
5. The learned counsel for the appellant impeached the finding of the trial court on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there is absolutely no legal evidence to prove the demand and acceptance of bribe by the appellant from PW6 to constitute the offence under Sections 7 and 13(1)(d) of the PC Act. The learned counsel further submitted that the evidence of PWs2, 4, 6 and 7 is not at all reliable and insufficient to connect the appellant with the crime. The counsel also submitted that without any proof of receipt of bribe by the appellant, the trial court wrongly drew presumption under Section 20 against the appellant. There is no valid sanction to prosecute the appellant, added the counsel. On the other hand, the learned Standing Counsel supported the findings and verdict handed down by the trial court and submitted that the prosecution has succeeded in proving the Crl.Appeal No.591/2016 -:6:- case beyond reasonable doubt.
6. First, I shall deal with the contention regarding lack of sanction. The learned counsel for the appellant submitted that Ext.P1 sanction to prosecute the appellant was not proved in accordance with law. According to the learned counsel, the sanction for prosecution was accorded by the sanctioning authority without considering the relevant documents and applying its mind. The counsel further submitted that the sanctioning authority was not examined to prove Ext.P1 sanction order.
7. Section 19(1) of the PC Act says that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority referred to in sub-sections (a), (b) and (c). The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant is not entangled in false and frivolous cases. The grant of sanction is not a mere formality but a solemn act which affords Crl.Appeal No.591/2016 -:7:- protection to the government servant against frivolous prosecution. All the relevant records and materials for the grant of sanction must be made available to the sanctioning authority, which must undertake complete and conscious scrutiny of those records and materials independently applying its mind before deciding whether to grant sanction or not. The order of granting or declining sanction should reflect that the sanctioning authority was furnished with all relevant facts and materials and applied its mind to all those materials. The validity of the sanction would therefore depend upon the materials placed before the sanctioning authority and on the application of mind by the sanctioning authority to those materials and facts of the case. On going through the materials and facts, the sanctioning authority has to apply its own independent mind to generate genuine satisfaction whether the prosecution has to be sanctioned or not When the order granting or declining sanction is challenged before a court, the court must determine whether there has been an application of mind on the part of the sanctioning authority concerned with the materials placed before it. The order of sanction must ex facie disclose that the sanctioning authority had Crl.Appeal No.591/2016 -:8:- considered the facts and all relevant materials placed before it (See Central Bureau of Investigation v. Ashok Kumar Aggarwal (2014) 14 SCC 295 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 KHC 1065).
8. The appellant is a Class I officer under the Central Government. So, the sanction order has to be issued under Article 77(2) of the Constitution of India. The Minister of Railways is the competent authority for granting sanction for prosecution of the accused on behalf of the President of India. The formal order of the prosecution has to be signed and issued by the designated authority of the concerned Ministry. Here, PW1, the Director of the Ministry of Railway, New Delhi has signed the sanction order, Ext.P1. Ext.P1 would show that the sanction was accorded by the Minister of Railways. Ext.D16 series is the copy of the file maintained at the Railway Board relating to the sanction granted to prosecute the appellant. DW4 was the Joint Director of Vigilance, Recruitment and Security (R&SC). He was examined to prove Ext.D16 series. Relying on the evidence of DW4 and the recital in sub paragraph No.1 of paragraph 8 of Ext.D16 series, the learned counsel for the appellant argued that important Crl.Appeal No.591/2016 -:9:- documents including the FIR were not forwarded to the Ministry of Railways at the time when the sanction for prosecution was sought. Since the material documents pertaining to the case were not forwarded to the sanctioning authority, Ext.P1 sanction order is vitiated, submitted the counsel. DW4 indeed deposed that 52 documents including FIR were not there when the file was transmitted to the Chief Vigilance Commissioner (CVC) for sanction. However, the recital in page 8 of Ext.D16 series would show that the Minister of Railways has made an endorsement that he has accorded sanction after going through the investigation report of the case No.RC19(A)2005/CBI/KER as well as all other relevant records. At any rate, the original case file contains copies of all the relevant records in respect of the case. On going through the entire evidence of DW4 and perusing Ext.D16 series, the trial court found that there is every reason to believe that even if the documents were not there at the time when DW4 forwarded the file to the CVC, the documents were there at the time when the Ministry of Railways perused the same. On analysis of the evidence, the trial court found that the Minister of Railways has accorded sanction after considering the Crl.Appeal No.591/2016 -:10:- facts of the case and perusing the entire documents. I see no reason to take a different view.
9. So far as the contention raised by the appellant regarding the non-examination of the Minister of Railways who granted the prosecution sanction is concerned, PW1 who was examined to prove the sanction was the Director of the Ministry of Railway and he signed the sanction as per the Rules of Business. The Supreme Court of India in State of Madhya Pradesh v. Jiyalal (AIR 2010 SC 1451) has held that there is no requirement to examine the authority who gave the sanction to prove the sanction order. In State through Inspector of Police A.P. v. K.Narasimhachary (AIR 2006 SC 628), it was held that an order of valid sanction can be proved either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show that the facts were placed before the sanctioning authority and the satisfaction arrived at by it. It is evident from Ext.P1, Ext.D16 series and the evidence of PW1 and DW4 that the sanctioning authority has applied its mind to the facts of the case and the materials placed before it. That apart, Section 19(3)(a) of Crl.Appeal No.591/2016 -:11:- the PC Act says that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1) unless, in the opinion of that court, a failure of justice has in fact been occasioned thereby. There is no proof, much less a case for the appellant that a failure of justice has been caused to him. Hence, the submission of the learned counsel for the appellant that there is no valid sanction for prosecution must fail.
10. As stated already, the prosecution version is that the appellant while working as Divisional Security Commissioner, Railway Protection Force, Palakkad, on 2/8/2005 demanded an amount of `10,000/- from PW6 through PW2 for effecting his posting at Palakkad and based on Ext.P12 complaint filed by PW6, PW7 laid the trap on 4/8/2005 and PW2 was caught red-handed while accepting the bribe amount of `5,000/-. Subsequently, the learned Chief Judicial Magistrate granted pardon to PW2, and he turned approver. It is not in dispute that the appellant was working as Divisional Security Commissioner, Railway Protection Force, Palakkad at the time of the alleged incident. It has also Crl.Appeal No.591/2016 -:12:- come out in evidence that PW2 was working under him at DSC's office, Palakkad during the period of the alleged incident. The appellant has raised a contention that PW2 was a Constable attached to RPF, Coimbatore and not a staff of the DSC's office, Palakkad at the time of the alleged incident. PW2 gave evidence that from July 1991 to 2003, he worked as Constable, RPF, Palakkad and even though he was transferred to Coimbatore in 2003, he continued working in the DSC's office, Palakkad on a working arrangement. Ext.D15 muster roll coupled with the evidence of PW2 clearly establishes that even though PW2 was transferred from Palakkad to Coimbatore in the month of October, 2003, he continued to work at Palakkad on working arrangement. It has also come out in evidence that as per Ext.P11 order dated 15/7/2005, PW6 was posted in the DSC's Office, Palakkad. The prosecution case is that the appellant demanded `10,000/- as illegal gratification from PW6 through PW2 as a consideration for effecting the said posting.
11. The prosecution mainly relied on, and the trial court accepted the evidence of PWs2, 4, 6 and 7 to prove its case and to fix the culpability on the accused.
Crl.Appeal No.591/2016-:13:-
12. PW6 was the decoy witness and the de facto complainant. The crime was registered based on Ext.P12 given by him. He was working as a Constable in SIB (Special Intelligence Branch), RPF, Palakkad in the year 2004. He sustained dislocation of his right shoulder and he was medically decategorized. He was absorbed in a supernumerary post of Constable in the SIB and afterwards, he was shifted to DSC's office in the same cadre to assist clerical staff. He underwent a suitability test for alternate appointment as clerk and the committee which was constituted to ascertain his suitability reported his suitability for the post. He was alternatively appointed as Personnel Branch Clerk on 13/7/2005. He deposed that he approached the appellant and requested for getting a posting at Palakkad. The appellant agreed to help him and directed him to meet PW2. Accordingly, he met PW2 who told him that if the appellant had said so, he might have been expecting something. PW2 further told him that he would contact the appellant and inform him. As evident from Ext.P11, on 15/7/2005, PW6 was posted as Personnel Branch Clerk in DSC's office. PW6 further deposed that on 2/8/2005, PW2 met him and told him that the appellant demanded `10,000/- as Crl.Appeal No.591/2016 -:14:- reward for his posting in the DSC's office. When he expressed his difficulty in paying the amount, PW2 asked him to meet the appellant in his chamber. Accordingly, on 2/8/2005, when he met the appellant in his chamber and expressed his inability to pay the amount, the appellant told him that `5,000/- should be paid as the first instalment and the balance amount of `5,000/- shall be paid within ten days. Since he was not willing to pay the money demanded, he reported the matter to PW7 who arranged the trap. Thereafter, as instructed by PW7, he contacted PW2 over the phone on 4/8/2005 and PW2 made arrangements to meet the appellant at his chamber at 4.30 p.m. As instructed by PW7, he entrusted ten 500 rupees notes (MO1 series) to PW7 as per Ext.P8 Entrustment Mahazar. MO1 series were smeared with phenolphthalein powder and given to him with instruction to hand them over to the appellant on demand. PW7 handed over a mobile phone to him and he was directed to switch on the phone and to keep it in his pocket. He then went to DSC's office along with PW7 and two independent witnesses, PW4 Aboobacker and one Mohandas. At about 6.00 p.m., he got an appointment to meet the appellant and accordingly he met him at the chamber. Crl.Appeal No.591/2016 -:15:- He informed the appellant that he brought the money. The appellant then directed him to entrust the money with PW2. Then the appellant along with him came out of the chamber. PW6 further deposed that the appellant got into his official car and went away. He entrusted the cover containing MO1 series notes to PW2 who was standing near the car. He received it and kept it in the pocket of his pants. Then he informed the matter to PW7 over the phone. PW7 and the team rushed to the spot and took PW2 to the office. PW7 asked PW2 to take the money and he took the cover given by PW6 containing MO1 series notes and handed it over to PW7. After that, the right hand of PW2 was dipped in sodium carbonate solution. The hand as well as the solution turned to pink colour.
13. PW4 was the witness who accompanied PW7 and team. He gave evidence in tune with the evidence tendered by PW6. His evidence would disclose that he was summoned to be a witness to the trap and accordingly he met PW7 at a lodge at about 2.30 p.m. His evidence would further disclose that he was a witness to the entire pre-trap transaction as deposed by PW6 and thereafter PW7 asked him to accompany him and PW6 to the Crl.Appeal No.591/2016 -:16:- DSC's office and observe the transaction. He specifically deposed that he witnessed PW6 handing over money to PW2. His evidence would further show that after PW6 gave the signal to PW7 as instructed, PW7 along with him approached PW2 and took him into the office and his fingers were dipped into the sodium carbonate solution and colour change was noticed. He identified MO4 as the bottle containing the solution, his signature on the labels pasted on the bottles and MO1 series notes recovered from PW2.
14. PW7 was the Dy.S.P who registered Ext.P14 FIR on the basis of Ext.P12 complaint given by PW6, laid the trap and recovered MO1 series trap money. He deposed that after the registration of the FIR, as instructed by him, PW6 produced MO1 currency notes, he then applied phenolphthalein powder to it and prepared Ext.P8 mahazar. He entrusted MO1 series currency notes with PW6 and gave specific instructions to him that those should be given to the appellant on demand. After that, he, PW4, Mohandas and the team went to the DSC's Office, Palakkad with a direction to give the signal when the appellant accepts money from PW6. PW7 gave a mobile phone to PW6 with instruction to Crl.Appeal No.591/2016 -:17:- dial his mobile number before he enters the room of the appellant so as to find out the transaction taking place between PW6 and the appellant. After 15 minutes, he received a call on his mobile phone from the mobile phone he gave to PW6. He proceeded immediately to the office of the DSC where he found PW6 standing outside the office. PW6 told him that he met the appellant who demanded money and directed him to meet PW2 which he did. He further stated that he gave MO1 series bribe money to PW2. Thereafter, PW7 along with the trap team met PW2 who, on interrogation, admitted the receipt of the bribe amount from PW6 as instructed by the appellant. MO1 currency notes found in a cover kept in the right-side pant pocket of PW2 were seized as per Ext.P4 mahazar. Thereafter, a clear solution of sodium carbonate was prepared in a glass tumbler and PW2 was asked to dip his right-hand fingers into the solution. On doing so, the hand as well as the solution turned pink colour.
15. PW2 gave evidence in tune with the evidence given by PW6. He deposed that on 13/7/2005, PW6 informed him that he was declared medically decategorized and he wanted a clerical posting in the DSC's office in Palakkad for which he met the Crl.Appeal No.591/2016 -:18:- appellant. PW6 told him that the appellant informed him that his decision would be conveyed to him and the appellant asked him to meet him. According to PW2, he told PW6 that the appellant might be expecting some money and that he would inform PW6 after contacting the appellant. He further deposed that when he met the appellant, he told him to inform PW6 that he should pay `10,000/- for getting a clerical posting in the DSC's office, Palakkad and he met PW6 and informed the same on 2/8/2005. When PW6 expressed his financial stringency to him, he told him to inform the matter to the appellant directly. On 3/8/2005, PW6 informed him that he met the appellant, and expressed his financial constraints, but the appellant was not convinced. According to PW2, thereafter he met the appellant who confirmed that PW6 had met him and expressed his financial difficulty. The appellant told him that he had already informed PW6 that the amount should be paid in two instalments and the first instalment of `5,000/- should be paid immediately and the balance amount should be paid within ten days. PW2 stated that on the same day, PW6 told the same to him. PW2 further stated that on 4/8/2005, PW6 called him over phone and informed him that money would Crl.Appeal No.591/2016 -:19:- be ready in noon. Then he instructed PW6 to give the money to the appellant directly. However, PW6 insisted his presence also when he gives the money. On 4/8/2005 in the evening, he along with PW6 went to the office of the appellant to meet him. He met the appellant who asked him to tell PW6 to wait. Thereafter at 6.00 p.m., he went to the chamber of the appellant along with PW6. When he came out of the chamber, PW6 was inside the chamber. After 10 to 15 minutes, both the appellant and PW6 came out of the chamber and the appellant left the place in his car. PW6 then came to him, gave him a cover stating that the appellant directed him to entrust the same with him and asked him to take the same to the residence of the appellant. He accepted the cover and kept it in his pocket and when he was about to leave, the CBI officials came to him, apprehended him, took him to DSC's office and the cover as well as the MO1 series inside it were seized from his possession. When questioned, he told CBI officials that MO1 series was the money given by PW6 to hand over to the appellant for effecting his transfer.
16. Though PWs2, 4, 6 and 7 were cross-examined in length, nothing tangible could be extracted from their evidence Crl.Appeal No.591/2016 -:20:- to discredit their testimony. PW4 who witnessed the trap was an independent witness. The appellant has no case that he had enmity towards him. Similarly, PW7 who laid the trap is an official witness. The appellant has also no case that he had any enmity towards him. True, PW2 being an approver, his evidence cannot be relied on without corroboration. The combined effect of Section 133 and Illustration (b) to Section 114 of the Indian Evidence Act is that though the conviction of an accused on the testimony of an accomplice is not illegal, the court, as a matter of practice will not ordinarily accept his evidence without corroboration in material particulars. The nature and extent of corroboration required, of course, must necessarily vary with the circumstances of each case and the particular circumstances of the offence alleged in each case. There need not be independent confirmation of every material circumstance in the sense that the independent evidence in the case apart from the evidence of the accomplice, in itself, be sufficient to sustain conviction. What is required is there must be some additional evidence rendering probable that the evidence of the accomplice is true, and it is reasonably safe to act upon it to hold that the accused has Crl.Appeal No.591/2016 -:21:- committed the crime. As stated already, the evidence of PW2 has been corroborated in material particulars by the evidence of PW6 and PW4. The learned counsel for the appellant vehemently argued that there was no concrete independent evidence to prove the demand and acceptance. It is not the law that there should be direct evidence in all cases to prove the demand and acceptance. It can be proved by acceptable circumstantial evidence as well. [See Neeraj Dutta v. State (Govt. of NCT of Delhi) (2023) 4 SCC 731]. Moreover, there is direct evidence in this case to prove the demand and acceptance. PW6, the decoy witness, deposed that he directly approached the appellant and requested a posting at Palakkad and the appellant agreed to help him and told him to meet PW2 and when he met PW2, he told him that if the appellant had said so, he might have been expecting something. He further deposed that on 2/8/2005 again he met the appellant personally in his chamber and expressed his inability to pay the amount as directed by PW2 and then the appellant told him that `5,000/- should be paid as the first instalment and the balance amount of `5,000/- shall be paid within 10 days. Thus, there is evidence to show that the demand Crl.Appeal No.591/2016 -:22:- for bribe was made by the appellant directly to PW6. PW6 also deposed that on 4/8/2005 at 6.00 p.m., when he met the appellant at his chamber and informed him that he brought the money, the appellant directed him to entrust the money with PW2 and accordingly he entrusted the money to PW2. Thus, there is evidence to prove the acceptance of bribe by PW2 from PW6 on behalf of the appellant. The bribe doesn't need to be accepted by the accused himself to attract the offence under Section 7 of the PC Act. It is sufficient if there is evidence to show that the person who accepted the bribe was for and on behalf of the accused. Thus, the demand and acceptance of illegal gratification have amply been proved by the prosecution through the evidence of PW2, 4, 6 and 7. The evidence regarding the positive result of the phenolphthalein test on the hand of PW2 and MO1 currency notes is strong circumstance to suggest that PW2 accepted and handled the tainted notes for and on behalf of the appellant.
17. The learned counsel for the appellant vehemently argued that there are umpteen circumstances pointing to the innocence of the appellant. It is submitted that PW6 was a person Crl.Appeal No.591/2016 -:23:- working in a clerical cadre and the appellant has neither the authority nor role or anything to do with his transfer/posting request. Relying on the evidence of PW3, PW5 and DW2, the counsel submitted that the Senior DPO was the competent authority for the absorption of medically decategorized staff for the alternate appointment and their posting and transfer thereof as clerk. However, during the cross-examination, when PW2 was asked as to whether the appellant could suggest the posting of staff in the DSC's office, he deposed that he can request for filling up the vacancies. It is pertinent to note that PW6 was working in the DSC's office, Palakkad at the time of Ext.P10 posting order and he was relieved from the DSC's office on 13/7/2005. So, it is quite natural for PW6 to request the appellant to help him. That apart, he may not be aware of the lack of authority on the part of the appellant concerning his posting in the DSC's office. So, the fact that DW2 was the authority to give posting in the personnel branch alone is not a ground to discard the prosecution version. What is material is the acceptance of gratification by inducing a belief or by holding out that he would render assistance to the bribe giver as rightly held by the trial court. It is immaterial Crl.Appeal No.591/2016 -:24:- whether the public servant who received the gratification does not intend to do the official acts. The Supreme Court in Chaturdas Bhagwandas Patel v. State of Gujarat (AIR 1976 SC 1497) while dealing with Section 161 of IPC, which was repealed by the coming into force of the PC Act, held that the said section does not require that the public servant must be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. The learned counsel further submitted that before 13/7/2005, PW6 was working in the appellant's office at Palakkad itself and, as such, PW6 did not need to request for a posting in Palakkad as he was working in Palakkad. Ext.P10 order dated 12/7/2005 would show that PW6 was posted in the personnel branch of Southern Railway, Palakkad. According to the prosecution, it was on 13/7/2005 that PW6 met the appellant and requested his help for getting a posting in the clerical cadre in the DSC's office, Palakkad and accordingly on 15/7/2005, he was posted in the DSC's office, Palakkad as per Ext.P11 order dated 15/7/2005. Thus, it is clear that PW6 wanted a posting in the clerical cadre in the DSC's office, Palakkad itself and that was why he met the appellant and requested his help. The learned Crl.Appeal No.591/2016 -:25:- counsel for the appellant further submitted that if the appellant was to be trapped, there would be no hindrance and the money could have been handed over to him at his residence where he was staying alone instead of giving the money at his chamber. The said argument is far-fetched and unsupported by any logic or reason. The time and place chosen by the receiver and giver of the bribe cannot be doubted on the ground that they could have chosen some other better place or time. The learned counsel next submitted that the better electronic evidence in the form of admitted recorded telephonic conversation between PW6 and PW2 vide Ext.P8 Entrustment Mahazar and the conversation between PW6 and PW7 recorded by PW7 at the DSC's office were available, but, the prosecution wilfully withheld the said material piece of evidence and hence, the trial court ought to have drawn adverse inference against the prosecution under Section 114(g) of the Evidence Act. The trial court in paragraphs 149 and 150 of the judgment has given reason for not drawing adverse inferences on account of the non-production of those electronic records. PW7 has categorically deposed during the cross- examination that the recorded conversation between PW6 and Crl.Appeal No.591/2016 -:26:- PW2 covered by Ext.P8 Entrustment Mahazar was recorded only for the purpose of verification of the complaint. He has also stated that the telephone call made by PW6 to him at the DSC's office during the trap proceedings which was recorded by him was not produced since it was not audible. When the substantive evidence of PW2 and PW6 is available to prove the trap as well as the demand and acceptance, the non-production of the electronic evidence is insignificant as rightly held by the trial court. I see no reason to take a different view. The learned counsel also highlighted certain contradictions in the evidence relating to the time on which PW4 met PW7 and also the commencement and conclusion of the trap proceedings. The said contradictions are minor and do not affect the fabric of the prosecution case. Thus, none of the circumstances pointed out by the learned counsel for the appellant would in any way help the appellant.
18. Admittedly, the appellant was a "public servant" as defined under Section 2(c) of the PC Act working as the Divisional Security Officer, Railway Protection Force, Palakkad at the time of the alleged incident. As stated already, the evidence of PWs2, 4, 6 and 7 proved the demand and acceptance of the bribe by the Crl.Appeal No.591/2016 -:27:- appellant from PW6 through PW2 as well as its recovery. Once the prosecution has established that the gratification in any form has been paid or accepted by a public servant, it can be presumed invoking presumption under Section 20 of the PC Act, unless the contrary is proved that the gratification was paid or accepted as a motive or reward to do or forbear from doing an official act in a charge under Section 7 of the PC Act. Similarly, once it is proved that the appellant accepted the tainted money without any protest, either by himself or through his agent, it can be presumed that he obtained the money within the meaning of Section 13(1)(d) of the PC Act.
The evidence on record, the sequence of events, and the circumstances narrated above clearly prove that the appellant demanded and accepted `5,000/- from PW6 through PW2 as illegal gratification by abusing his official position as a public servant and availed pecuniary advantage by adopting corrupt and illegal means. Thus, the trial court was justified in convicting the appellant for the offence under Sections 7 and 13(2) r/w 13(1)
(d) of the PC Act. The sentence imposed by the trial court also appears to be reasonable. There is no merit in the appeal and Crl.Appeal No.591/2016 -:28:- accordingly it is dismissed confirming the conviction and sentence.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp